One box was unchecked in the release which was signed online, and the court would not grant the motion for summary judgment of the defendant because whether or not the release was valid was a decision for the jury.

This judge was either not going to make a decision or only allow the plaintiff to win. However, the defendants set themselves up to lose by having a check box in the release.

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

State: Florida: United States District Court for the Northern District of Florida, Panama City Division

Plaintiff: Brian Moore

Defendant: North America Sports, Inc., USA Triathlon

Plaintiff Claims:

Defendant Defenses: Assumption of the risk, Release

Holding: for the Plaintiff

Year: 2009

Summary

Having a box unchecked on a release sent the case to trial because the judge would not decide if that made the release valid. Having no jurisdiction and venue clause also created an opening, left unresolved on whether Florida or Montana’s law would apply. If Montana’s law, the releases would be void.

Overall, a poorly prepared or thought-out motion and supporting documents that helped the plaintiff more than the defendant left the defendant in a worse position than before they filed the motion.

Facts

The deceased lived in Montana and signed up in Montana to enter a triathlon in Panama City Beach Florida. In the process of signing up, he signed two releases. One for the website and one for the triathlon. The defendant also stated that the deceased signed two more releases upon registering for the event in Florida. The release signed for the website was not a factor in this decision.

During the swim portion of the triathlon the deceased experienced distress and died three days later.

His survivors filed this lawsuit.

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

The first issue reviewed by the court was the defense of assumption of the risk. The court resolved this issue in favor of the plaintiff in a short paragraph. Whether or not the deceased assumed the risk of his injury is a question for the jury. It cannot be resolved in a Motion for Summary Judgment.

When a participant volunteers to take certain chances, he waives his right to be free from those bodily contacts inherent in the chances taken.” However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible.

The second argument made by the plaintiff was whether or not the USA Triathlon was liable as a sanctioning body. “In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event.” USA Triathlon argued they did not control the event and should be dismissed.

Again, the court stated whether or not USA Triathlon had any control over the event was a question of fact for the jury.

The next issues were the releases. The first issue was what law applied to the releases. There was obviously no jurisdiction and venue clause in the release or because there was an issue of the validity of the release, the court took it upon itself to determine what law applied.

The plaintiff’s argued that Montana’s law should apply. Montana does not allow the use of a release. See Montana Statutes Prohibits Use of a Release.

All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law.

Since this decision, the statute has been amended to allow the use of releases for sport or recreational opportunities. See Montana Recreation Responsibility Act.

However, the court never made a definitive statement as to whose law would be applied to the releases in this situation.

The next issue was a review of the releases signed on-line when the deceased registered for the event. The on-line release required a box to be checked. In the discovery process, the defendant provided a copy of the release signed by the deceased that had a box that was unchecked.

Defendants provide a printout showing an electronic signature. However, in order to properly exe-cute the waiver, the waivers state that the participant must check the box. Defendants fail to pro-vide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

Again, the court saved this issue for the jury. Somehow the deceased was able to register for the event and leave a box unchecked; consequently, the court found one unchecked box was enough to deny a motion for summary judgment as to the validity of the release.

The defendant then argued that there were two additional releases signed by the deceased that would have stopped the plaintiff’s claims. However, the copies the defendant provided did not have signatures on them.

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

This allowed the plaintiff to plead the deceased never signed the documents and the court again through the decision to the jury.

So Now What?

Remember this decision was decided nine years ago. At that time, the law concerning assumption of the risk has changed, and more courts are determining that the risk the plaintiff suffered was inherent in the sport. Therefore, the plaintiff assumed the risk. Whether or not that evolution in the law has occurred in Florida. I have not researched.

I suspect that USA Triathlon now has written agreements with all races it sanctions setting forth the legal requirements of the relationship. Absent an agreement, an industry practice can easily be proven, but not in a motion for summary judgement. A contract outlining the legal responsibilities between the parties can be used in a motion for summary judgment.

Check Boxes in a Release are landmines waiting to explode.

Why do you have boxes to be checked in a release? They do not support a contract, they only support the theory that the unchecked section is not valid or as in this case the entire release is not valid.

It was just stupid not to have your ducks in a row as a defendant when filing or defending motions for summary judgment. Here the defendants looked bad. Their arguments were strong, but they had no proof to support their arguments. For more on how check boxes can void your release see Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.

You can prove the deceased signed a release if you don’t have a copy of the signature on the release, however, to do so you have to be able to prove that your system would not have allowed the deceased to race unless he signed. Nothing like that was introduced for all three of the releases the defense argued the decedent signed.

That does not even take into account novation. The second and third release might have been void because they were not signed for consideration. Only the first release had consideration, a benefit flowing to the decedent, entrance into the race. The decedent was in the race when he signed the second and third release, so there was no new consideration. See Too many contracts can void each other out; two releases signed at different times can render both release’s void.

Two many releases, no contracts between the defendants and this order made the defendants look bad and guaranteed a trial.

Honestly, the decision reads like either a judge, who does not want to make a decision or one that was heavily leaning towards the Plaintiff. At the same time, the defendants made easy for the judge to rule this way. However, there is not much choice, you have to play with the cards the court clerk gives you.

What do you think? Leave a comment.

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Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Moore v. North America Sports, Inc., et al., 2009 U.S. Dist. LEXIS 134557

Brian Moore, as Personal Representative on behalf of the Estate of Bernard P. Rice, deceased, Plaintiff, vs. North America Sports, Inc., et al., Defendants.

CASE NO. 5:08cv343/RS/MD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PANAMA CITY DIVISION

2009 U.S. Dist. LEXIS 134557

June 26, 2009, Decided

June 26, 2009, Filed

CORE TERMS: summary judgment, decedent, affirmative defenses, online, registration, fault, box, tortfeasor, choice of law, necessary to complete, sanctioning, registered, printout, Black’s Law Dictionary, last act, material fact, nonmoving party, sole cause, concurrent tortfeasors, health care providers, undisputed, off-campus, designated, causation, lawsuit, movant’s, waived, willful, usage, medical attention

COUNSEL: [*1] For BRIAN MOORE, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASED, Plaintiff: DIANA SANTA MARIA, LEAD ATTORNEY, AS PERSONAL REPRESENTATIVE ON BEHALF OF THE ESTATE OF BERNARD P. RICE, DECEASE, FORT LAUDERDALE, FL; DOROTHY CLAY SIMS, LEAD ATTORNEY, LAW OFFICE OF DOROTHY CLAY SIMS ESQ, OCALA, FL; JOEL S PERWIN, LEAD ATTORNEY, JOEL S PERWIN PA – MIAMI FL, MIAMI, FL; JOHN N BOGGS, BOGGS & FISHEL – PANAMA CITY FL, PANAMA CITY, FL.

For NORTH AMERICA SPORTS INC, doing business as WORLD TRIATHLON CORPORATION, doing business as IRONMAN TRIATHLON, doing business as FORD IRONMAN FLORIDA, formerly known as IRONMAN NORTH AMERICA, USA TRIATHLON, A FOREIGN COMPANY, Defendants: JASON BERNARD ONACKI, LEAD ATTORNEY, COLE SCOTT & KISSANE PA – PENSACOLA FL, PENSACOLA, FL; LARRY ARTHUR MATTHEWS, LEAD ATTORNEY, MATTHEWS & HIGGINS LLC, PENSACOLA, FL; SHANE MICHAEL DEAN, DEAN & CAMPER PA – PENSACOLA FL, PENSACOLA, FL.

JUDGES: RICHARD SMOAK, UNITED STATES DISTRICT JUDGE.

OPINION BY: RICHARD SMOAK

OPINION

Order

Before me are Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46); Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79); Plaintiff’s Motion for [*2] Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86); Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125); and Plaintiff’s Motion for Leave to File Reply (Doc. 144).

I. STANDARD OF REVIEW

The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant’s evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere ‘scintilla’ of evidence supporting the nonmoving party’s position will not suffice; there must be enough of a showing that the [*3] jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251, 106 S. Ct. at 2512).

II. FACTS

Decedent, Bernard Rice, registered online in Montana, and participated in the 2006 Ford Ironman Florida Triathlon held in Panama City Beach, Florida on November 4, 2006. Defendant contends that Rice signed numerous waivers to participate in the race; Plaintiff denies that Rice signed any waivers. Decedent experienced distress in the swim course approximately half-way into the second 1.2 mile lap of the 2.4 mile swim course. He received medical attention, but the timing and nature of medical attention are in dispute. Rice died on November 7, 2006.

III. DUTY OWED TO PLAINTIFF

a. Assumption of Risk

Defendants contend that Rice voluntarily assumed the risk of participating in the 2006 Ford Ironman Florida Triathlon. “When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.Kuehner v. Green, 436 So. 2d 78, 80 (Fla. 1983). However, it is the jury’s function to determine whether a participant should have anticipated the particular risk, and whether the defendant made the activity as safe as possible. Id; O’Connell v. Walt Disney World Co., 413 So. 2d 444, 447 (Fla. Dist. Ct. App. 1982). Therefore, summary judgment is not appropriate on this issue.

b. Sanctioning Body

Defendant [*4] USA Triathlon argues that it had no duty as the sanctioning organization of the 2006 Ford Ironman Florida Triathlon. Defendants cite authority from Illinois, Massachusetts, and New York. In order for a sanctioning organization, or sponsoring organization, to be liable, it must have some control over the event. See Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 200) (university had duty to graduate student placed in specific off-campus internship which it knew to be unreasonably dangerous); D’Attilio v. Fifth Avenue Business Ass’n, Inc., 710 So.2d 117 (Fla. Dist. Ct. App. 1998) (the party with control over land owes a duty, jury question whether defendant that coordinated and sponsored a fair on city streets, where city controlled amount of law enforcement, had a duty); Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) (Principal and teacher had a duty to injured student because had the authority to control activities of school club even at a meeting held off-campus); Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999) (camp sponsor could be found negligent for falling to tell lifeguard camper suffered from seizures). It is a question of fact for the jury whether Defendant USA Triathlon had sufficient control over the 2006 Ford Ironman Florida Triathlon because of its sanction of the event to have a duty to the participants. Summary judgment is not appropriate.

IV. WAIVERS

Defendant moves for summary judgment based on [*5] the waivers decedent allegedly executed. Plaintiff moves for summary judgment on Defendants’ third and fourth affirmative defenses which read as follows.

THIRD AFFIRMATIVE DEFENSE

53. On November 6, 2005, and prior to Plaintiff’s claim in this action accruing, Decedent waived any and all claims against USAT and NA Sports. A copy of the waiver is attached as Exhibit “A.” Decedent also entered two additional waivers during race registration. Unsigned copies of the waivers entered by Decedent are attached as Exhibits “B” (although designated as a 2007 waiver, it is otherwise the same as the 2006 waiver executed by Decedent) and “C.” By entering these waivers, Decedent waived the Plaintiff’s ability to bring the claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

FOURTH AFFIRMATIVE DEFENSE

54. On November 6, 2005, and prior to accrual of Plaintiff’s claims in this action, Decedent entered a release of any and all claims against USAT and NA Sports relating to the 2006 Ford Ironman Triathlon. A copy of the release is attached as Exhibit “A.” Decedent also entered two additional releases during race registration. Unsigned copies of the releases entered by Decedent are attached as Exhibits “B” (although [*6] designated as a 2007 release, it is otherwise the same as the 2006 release executed by Decedent) and “C.” By entering these releases, Decedent has precluded Plaintiff’s claims in the instant lawsuit. Fla.R.Civ.P. § 1.110(d).

a. Choice of Law

First, the choice of law governing the waiver must be determined, because the applicable law might not support enforcement of the waiver, which would make the waivers irrelevant. As for the appropriate contract law to apply, the parties agree that Florida choice of law analysis is applicable.
See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 1021, 85 L. Ed. 1477 (1941).
Both parties also agree that under Florida law, “lex loci contractus” provides that the laws of the jurisdiction where the contract was executed govern interpretation of the substantive issues regarding the contract. Prime Ins. Syndicate, Inc. v. B.J. Handley Trucking, Inc., 363 F.3d 1089, 1091 (11th Cir. 2004). The determination of where a contract was executed is fact-intensive and requires a determination of “where the last act necessary to complete the contract [was] done.Id. at 1092-93 (quoting Pastor v. Union Cent. Life Ins. Co., 184 F.Supp.2d 1301, 1305 (S.D. Fla. 2002)). The last act necessary to complete a contract is the offeree’s communication of acceptance to the offeror. Id. (citing Buell v. State, 704 So.2d 552, 555 (Fla. Dist. Ct. App. 1997)). Here, it is undisputed that the last act necessary to complete the contract occurred in Montana.

Plaintiff points to Montana law, which states, “All contracts [*7] which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” Mont. Code Ann. § 28-2-702 (2007). However, Plaintiff fails to take into account that first the applicable choice-of-law must be determined, and then the contract is interpreted according to that state’s substantive law. See Charles L. Bowman & Co. v. Erwin, 468 F.2d 1293, 1295 (5th Cir. 1972); See Shapiro v. Associated Intern. Ins. Co., 899 F.2d 1116, 1118 (11th Cir. 1990).

Defendants point to Montana law, which states, “A contract is to be interpreted according to the law and usage of the place where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.” Mont. Code Ann. § 28-3-102 (2007). The race occurred in Florida; therefore, Florida law applies. In Florida, waivers or exculpatory clauses, although not looked upon with favor, are valid and enforceable if the intent to relieve a party of its own negligence is clear and unequivocal. Banfield v. Louis, 589 So.2d 441, 444-45 (Fla. Dist. Ct. App. 1991) (citing L. Luria & Son, Inc. v. Alarmtec Int’l Corp., 384 So.2d 947 (Fla. Dist. Ct. App. 1980); O’Connell v. Walt Disney World Co., 413 So.2d 444 (Fla. Dist. Ct. App. 1982); Middleton v. Lomaskin, 266 So.2d 678 (Fla. Dist. Ct. App. 1972)).

b. Online Waivers

On November 6, 2005, Rice registered online for the 2006 Ford Ironman Florida Triathlon, which includes two waivers. In order to properly execute both waivers, the participant had [*8] to check two separate boxes. While both sides agree that Rice registered himself online, it is in dispute whether the boxes were checked. The first waiver only applies to the active.com website, which advertises various races and allows participants to fill out online registrations. However, the website has nothing to do with the actual race and is not a party to this suit. The second online waiver applies to Defendants. Defendants contend that the online registration could not be completed unless the boxes were checked, but Plaintiff contends that the printout from the online registration provided by Defendants does not contain any checked boxes (or any boxes). Whether the online wavier was properly executed is clearly in dispute.

Defendants provide a printout showing an electronic signature. However, in order to properly execute the waiver, the waivers state that the participant must check the box. Defendants fail to provide any evidence to show a connection between checking the box and an electronic signature appearing in the printout. This lack of evidence leaves us just short of the finish line. Had a proper showing been made, summary judgment for the Defendants might have been [*9] warranted. Whether the online wavier was properly executed is a material fact for the jury to decide.

c. Onsite Registration

Defendants claim that Rice would have been required to sign two additional waivers in order to complete the onsite registration and be allowed to participate. Defendants do not provide signed copies of these waivers, only blank copies. Plaintiff denies that Rice signed any waiver on the day of the race. The fact that Defendants cannot provide a signed waiver does not exclude testimony on this matter; it merely goes to the weight of the evidence for the jury to consider.

V. BAY MEDICAL

Plaintiff moves for dismissal, or summary judgment, on Defendants’ sixth affirmative defense, which alleges that Bay Medical Emergency Medical Services was “the sole cause or contributing cause of the injuries and harm alleged by Plaintiff.” Plaintiff repeats the exact same argument in its Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125). Plaintiff argues that this is not an affirmative defense, but rather is a traditional basis for denying causation, on the ground that another entity was solely at fault. An affirmative [*10] defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all the allegations in the complaint are true. Black’s Law Dictionary (8th ed. 2004). Defendants contend that Florida Statute § 768.81(3) permits a defendant to apportion fault to a non-party whose negligence contributed to the plaintiff’s injury or death.

The Florida Supreme Court held that “apportion[ing] the loss between initial and subsequent rather than joint or concurrent tortfeasors…cannot be done.” Stuart v. Hertz Corp., 351 So.2d 703, 706 (Fla. 1977). Concurrent tortfeasors are two or more tortfeasors whose simultaneous actions cause injury to a third party. Black’s Law Dictionary (8th ed. 2004). Here, Defendants and Bay Medical Emergency Medical Services are not concurrent tortfeasors, because their actions could not have occurred simultaneously. Florida law clearly states:

“[O]riginal tortfeasor is liable to victim not only for original injuries received as result of initial tort, but also for additional or aggravated injuries resulting from subsequent negligence of health care providers, even though original tortfeasor and subsequently negligent health care providers are independent tortfeasors. Ass’n for Retarded Citizens-Volusia, Inc. v. Fletcher, 741 So.2d 520, 526 (Fla. Dist. Ct. App. 1999).

Therefore, Defendants’ sixth affirmative defense is dismissed. [*11] Defendants are not entitled to include Bay Medical Emergency Medical Services on the verdict form for the jury’s consideration, but Defendants are permitted to argue that Bay Medical Emergency Medical Services were the sole cause of the injuries and harm alleged by Plaintiff as it relates to causation.

VI. CONCLUSION

IT IS ORDERED:

1. Plaintiff’s Motion for Summary Judgment on the Affirmative Defenses of Release (Doc. 46) is denied.

2. Defendants’ Motion for Summary Judgment and Memorandum in Support (Doc. 79) is denied.

3. Plaintiff’s Motion for Partial Dismissal or for Partial Summary Judgment on the Defendants’ Sixth Affirmative Defense, Alleging Comparative Fault of Bay County Emergency Medical Services (Doc. 86) is granted.

4. Plaintiff’s Motion in Limine to Exclude Reference of any Fault on the part of Bay County EMS or any other Non Party (Doc. 125) is denied as moot.

5. Plaintiff’s Motion for Leave to File Reply (Doc. 144) is denied as moot.

ORDERED on June 26, 2009.

/s/ Richard Smoak

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE


The Idaho Supreme Court holds there is no relationship between signs posted on the side of the indoor trampoline park, and a duty owed to the injured plaintiff

The Plaintiff in attempting to do a triple front flip broke his neck. Plaintiff argued that the manual of the indoor trampoline park, and the signs on the walls created a duty on the part of the employees of the defendant to stop him from doing the flips.

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

State: Idaho, Supreme Court of Idaho

Plaintiff: Seth Griffith

Defendant: Jumptime Meridian, LLC

Plaintiff Claims: Negligence

Defendant Defenses: No Causation

Holding: For the Defendant

Year: 2017

This is a sad case; the 17-year-old plaintiff was injured attempting front flips at the defendants’ indoor trampoline park. The plaintiff went  there with his girlfriend and his girlfriend’s siblings. Eventually, the plaintiff ended up near a foam pit where you could land after attempting maneuvers on the trampoline. The pit was near where his girlfriend was located.

He had been performing several double flips successfully. At two different time’s employees of the defendant commented about his double flips. One said it was pretty cool and the other one said, “oh that was pretty sweet.” At no time, did anyone from the defendant admonished him to not to perform the flips he was doing. He was landing in the foam pit with his legs extended downward and on his butt, so he wouldn’t hit his face on his knees. Signs are on the wall said that the plaintiff could not land that way.

The plaintiff filed this complaint alleging that because he was under the age of 18, the defendant had a duty to supervise him. He could  show that the defendant’s written policy manual instructed employees to enforce the rules written on the walls of the defendants trampoline park in several places.

The defendant moved for summary judgment alleging that there was no relationship between the duty allegedly owned to the plaintiff and the plaintiff’s accident. In proving negligence one must prove duty, a breach the duty, an injury, and the injury was proximately caused by the breach of the duty.

The defendant filed a motion for summary judgment, which was granted. The plaintiff appealed to the Idaho Supreme Court. Idaho does not have an intermediate appellate court.

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

The court first looked at the requirements under Idaho law to prove negligence.

The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.

The court then reviewed the actions of the plaintiff leading up to his injury. He did not tell anyone that is going to attempt to do the flip that caused his injury. Nor was any evidence introduced stating that the employee of the defendant could have or should have known that the plaintiff was going to do a triple flip. The plaintiff argued that he should be entitled to reasonable inference that if the defendant had enforced its rules when he was landing improperly, then he would have never attempted the triple flip.

…Plaintiff attempted the triple front flip. He did not tell anyone he was going to attempt it, nor is there any evidence indicating that the monitor knew or should have known that he would try a triple front flip. Plaintiff argues on appeal that he is “entitled to the reasonable inference that had JumpTime enforced its rules and interceded when [he] was landing improperly and dangerously on his back, [he] would not have felt emboldened and would never have attempted a triple flip.”

However, the court did not buy that argument. The court did find that there was no evidence that landing on your back was more dangerous than landing any other way. The plaintiff even testified that he felt safer to land the way he was because it avoided the risk of hitting his face of his knees.

Nor could the plaintiff prove or produce any evidence that he would’ve changed his actions if he had been admonished by an employee. Nothing in the record of the depositions of the plaintiff remotely suggested that idea.

The court simply held that there was no way the defendant could be responsible for the accident giving rise to his injury because it was solely the decision of the injured plaintiff.

Plaintiff’s testimony does not support an inference that JumpTime was in any way responsible for his decision to try the triple front flip. Therefore, the district court did not err in granting summary judgment to JumpTime based upon the lack of evidence regarding causation.

So Now What?

Honestly, it takes a tough court to look at an injured plaintiff, possibly one wheelchair, and not want to award him some damages for his injuries. However, in this case the action of the plaintiff was such a stretch in trying to tie in his injury to something that the defendant had done.

What was of interest in this case was one of the arguments the plaintiff made saying that the signs on the wall describing to the patrons of the defendant how to land in the foam pit established a standard of care that was the defendant’s employee’s duty to monitor and enforce.

In response, Plaintiff contended that the signs on the wall stating how to land in the foam pit established the standard of care and that because of the attendant’s failure to admonish him for landing incorrectly, he was not discouraged from attempting a more difficult maneuver like a triple front flip.

Thankfully, the court did not buy this argument. It is a fine line we walk when we’re trying to train young employees and having them work with even younger patrons to keep safe. You write the rules, tell the employees to enforce the rules, but in some cases there is no way that you can guess what a patron is going to do. Here the plaintiff expected the defendant to guess what his actions would be and the court would not accept that.

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Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

Griffith v. Jumptime Meridian, LLC, 2017 Ida. LEXIS 90

Seth Griffith, Plaintiff-Appellant, v. Jumptime Meridian, LLC, an Idaho Limited Liability Company, Defendant-Respondent.

Docket No. 44133-2016, 2017 Opinion No. 29

SUPREME COURT OF IDAHO

2017 Ida. LEXIS 90

April 10, 2017, Filed

PRIOR HISTORY:  [*1] Appeal from the District Court of the Fourth Judicial District of the State of Idaho, in and for Ada County. Hon. Deborah A. Bail, District Judge.

DISPOSITION: The judgment of the district court is affirmed.

COUNSEL: Eric Clark, Clark & Associates, Eagle, argued for appellant.

William Fletcher, Hawley Troxell Ennis & Hawley LLP, Boise, argued for respondent.

JUDGES: EISMANN, Justice. Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.

OPINION BY: EISMANN

OPINION

EISMANN, Justice.

This is an appeal out of Ada County from a judgment dismissing an action brought against JumpTime Meridian, LLC, by Seth Griffith seeking damages for an injury he received while attempting a triple front flip when he was seventeen years of age. We affirm the judgment of the district court.

I.

Factual Background.

On January 11, 2014, seventeen-year-old Seth Griffith (“Plaintiff”) was seriously injured when he attempted a triple front flip into a pit filled with foam blocks (“foam pit”) at an indoor trampoline park owned and operated by JumpTime Meridian, LLC (“JumpTime”). Plaintiff went to the facility with his girlfriend and her younger brother and sister. Plaintiff initially played with the brother on trampolines for about ten or fifteen minutes, and [*2]  then they went to an area where there were runway trampolines. Plaintiff spent about fifteen to twenty minutes doing front flips, back flips, and cartwheels on the runway trampolines, and he taught the brother to do a front flip. He then started showing off to the brother, doing various gymnastic tricks. He jumped up, did a back flip, jumped up, and did another back flip, and a female JumpTime employee, who was monitoring the foam pit area, told him it was pretty cool.

The facility had foam pits, one large (sixteen feet by eighteen feet) and one small (nine feet by sixteen feet). The large foam pit had twin trampolines that were each twelve feet long leading to it, and the small foam pit had a 58-foot-long trampoline runway leading to it.

Plaintiff’s girlfriend and her sister were near the large foam pit. He walked over to where they were and talked to them. While he was there, he jumped into the large foam pit a few times. He then spent about 45 minutes “kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines.” After he did a double front flip into the small foam pit, the monitor came up to him and asked if he had ever done a double before. He [*3]  answered that he had, and she said, “Oh, that was pretty sweet.” As he continued performing double front flips into the small foam pit, he noticed that doing them was easier than it used to be for him. He decided to try a triple front flip. When he attempted it, he did not rotate far enough and landed on his head and neck, suffering a cervical dislocation and fracture, which required a fusion of his C6 and C7 vertebrae.

Plaintiff filed this action alleging that JumpTime negligently caused his injury. He contended that because he was under the age of eighteen, JumpTime had a duty to supervise him. He had been intentionally landing the double front flips on his back in the pit. He testified that he did so “because you don’t want to land on your feet because you can bash your head against your knees.” JumpTime’s written policy manual instructed its employees with respect to the foam pit to “[f]ollow the rules outlined on the wall and continuously enforce it.” There were signs on the walls near the two pits that instructed customers to land on their feet. A large sign painted on the wall next to where the runway trampoline ended at the small foam pit said:

•      Jump feet first into the pit

•      Land on [*4]  your feet and seat

•      No landing on your head or Stomach

Just past the small foam pit was a sign titled “FOAM PIT RULES,” which included the admonition: “WHILE YOU JUMP: DO NOT land on head, neck or belly. NO DIVING; FEET FIRST.” A third sign located on the wall near the large foam pit was titled “FOAM PIT PATRON RESPONSIBILITY CODE,” and it included the admonition, “Jump and land on two feet.” Plaintiff contended that had the attendant told him to land on his feet, he would not have attempted the triple front flip.

JumpTime moved for summary judgment alleging that there was no negligence, based upon the opinion of an expert that industry standards permitted landing a front flip into a foam pit on one’s feet, buttocks, or back, and that there was no evidence of causation. In response, Plaintiff contended that the signs on the wall stating how to land in the foam pit established the standard of care and that because of the attendant’s failure to admonish him for landing incorrectly, he was not discouraged from attempting a more difficult maneuver like a triple front flip. The district court granted JumpTime’s motion for summary judgment, holding that Plaintiff had failed to produce evidence [*5]  of negligence and causation. Plaintiff then timely appealed.

II.

Did the District Court Err in Granting JumpTime’s Motion for Summary Judgment?

When reviewing on appeal the granting of a motion for summary judgment, we apply the same standard used by the trial court in ruling on the motion. Infanger v. City of Salmon, 137 Idaho 45, 46-47, 44 P.3d 1100, 1101-02 (2002). We construe all disputed facts, and draw all reasonable inferences from the record, in favor of the non-moving party. Id. at 47, 44 P.3d at 1102. Summary judgment is appropriate only if the evidence in the record and any admissions show that there is no genuine issue of any material fact regarding the issues raised in the pleadings and that the moving party is entitled to judgment as a matter of law. Id.

The elements of common law negligence have been summarized as (1) a duty, recognized by law, requiring a defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.” Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980). In this case, there were no facts in the record showing a causal connection between JumpTime’s alleged negligence and Plaintiff’s injury.

The issue of causation is why Plaintiff attempted the triple front flip. He did not tell [*6]  anyone he was going to attempt it, nor is there any evidence indicating that the monitor knew or should have known that he would try a triple front flip. Plaintiff argues on appeal that he is “entitled to the reasonable inference that had JumpTime enforced its rules and interceded when [he] was landing improperly and dangerously on his back, [he] would not have felt emboldened and would never have attempted a triple flip.”

First, there is no evidence that it was dangerous to land on one’s back. Even Plaintiff testified that he believed it was safer because it avoided the risk of hitting his face with his knees.

 

Second, Plaintiff did not testify during his deposition that had the monitor admonished him to land on his feet that he would not have attempted the triple front flip, nor did he testify that the conduct of the monitor was part of that decision. He testified that he decided to attempt the triple front flip because completing the double front flips was easier than previously had been for him, that he was having to come out of his rotation earlier than he previously had to, and that he was confident he was in the air long enough to do a triple front flip, which would be exciting. [*7]

Plaintiff testified that performing the double front flips was easier than it previously had been for him.

    Q. Well, tell me everything. Let’s just move in chronological order about what is happening and work up to the incident. So if you are at that point, then go ahead.

    A. After about 45 minutes of just kind of horsing around on both the runway trampoline and the foam pit and the twin trampolines, I got onto the runway trampoline, plus the foam pit, and I kind of noticed I had been doing doubles easier than what I was normally used to, like I was just either spinning faster or getting higher. It was just easier than what I was accustomed to. So I decided to go for a triple.

He was asked why he attempted the triple front flip, and he did not answer that JumpTime was in any way responsible for that decision. He said that when doing double front flips he had to come out of his rotation earlier than he previously had to and he thought he had enough air to perform a triple front flip.

    Q. Okay. So was the reason that you attempted this triple flip in the small foam pit just because it had a longer runway?

    A. No. I had been doing doubles easier, like I was—I had to break from my rotation earlier [*8]  than I previously would have to. So it was like I was having more time in the air to actually do the flips. So I kind of thought that I would be able to have enough air to do a triple.

He also stated that he was confident he could perform the triple front flip and was excited to try.

    Q. Did you have any concerns about being able to do the triple without hurting yourself?

    A. No. The time when I was about to do it I was pretty confident that I could.

    . . . .

    Q. Were you nervous at all before attempting the triple?

    A. No. I was actually pretty excited about it.

    Q. Why would you say that?

    A. Just because, like I used to be an avid gymnastics person, so doing a new trick, like if I could—like if I added a 360 onto a front flip, I’d get pretty excited. If I did like an aerial for the first time, like I got excited. So new things kind of excited me.

Plaintiff’s testimony does not support an inference that JumpTime was in any way responsible for his decision to try the triple front flip. Therefore, the district court did not err in granting summary judgment to JumpTime based upon the lack of evidence regarding causation.

III.

Is Either Party Entitled to an Award of Attorney Fees on Appeal?

Both parties [*9]  request an award of attorney fees on appeal pursuant to Idaho Code section 12-121..An award of attorney fees under that statute will be awarded to the prevailing party on appeal only when this Court is left with the abiding belief that the entire appeal was brought, pursued, or defended frivolously, unreasonably, or without foundation. McGrew v. McGrew, 139 Idaho 551, 562, 82 P.3d 833, 844 (2003); Benz v. D.L. Evans Bank, 152 Idaho 215, 231-32, 268 P.3d 1167, 1183-84 (2012). Because Plaintiff is not the prevailing party on appeal, he is not entitled to an award of attorney fees under that statute. VanderWal v. Albar, Inc., 154 Idaho 816, 824, 303 P.3d 175, 183 (2013). Although it is a close question, we decline to award attorney fees on appeal to JumpTime because we do not find that this appeal meets the requirements for such an award.

IV.

Conclusion.

We affirm the judgment of the district court, and we award Respondent costs, but not attorney fees, on appeal.

Chief Justice BURDICK, and Justices JONES, HORTON and BRODY CONCUR.


Utah Court reaches to find a boat renter liable when a boat sinks on Lake Powell due to high winds

The Federal District Court found the boat rental operation was negligent to defeat damages defenses provided by admiralty law. Causation, the relationship between what the defendant did and the accident giving rise to the claim seems to be stretched in this case.

In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565

State: Utah, United States District Court for the District of Utah, Central Division

Defendant: In re Aramark Sports and Entertainment Services, LLC, a Delaware limited liability company, as owner of a certain 20′ 2007 Baja Islander 202 for exoneration from or limitation of liability

Plaintiff Claims: Negligence

Defendant Defenses: Limitation of Liability Act, 46 U.S.C. §§ 30501-30512

Holding: for the Plaintiff

Year: 2014

This case is a little out of the unusual for me because it concerns a powerboat. However, the legal issues could apply to any boat; whitewater raft, sea kayak, kayak or whatever. More importantly, it could affect canoe liveries or boat rentals if the decision is accepted by other courts.

One way of defending against claims due to boating accidents is by using federal law. If a river or body of water is determined to be navigable as defined under federal law, then a defendant can use a federal statute and admiralty law to limit any possible claims. The reason you would want to do this is the maximum that can be recovered against someone using this section of admiralty law, is the value of the vessel after the accident plus the value of the cargo. So most cases, when there has been a catastrophic loss the value of the raft zero, as the boat is destroyed or sunk. Even a raft that is recovered with all of its gear would still be limited to $10 to $20,000.00 in value.

The first issue you have to overcome when using admiralty law limits is to establish jurisdiction. The body of water or river has to qualify as being a navigable river under a specific section of the law. The problem is there are 17 different definitions of navigable under federal law, plus who knows how many more under state law. You must apply the correct definition of navigable to the case.

In this case, the accident occurred on Lake Powell. Because Lake Powell spans two states and is used for commercial traffic it was declared to be navigable under the law.

The basis for this claim is three couples rented a boat from the concessionaire at the marina. Eventually, the boat sank with four of them drowning. The winds picked up and exceeded the maximum wind speed the boat should have been operated at. The defendant filed this action in federal court claiming the value the vessel after the accident was zero and therefore, there was no recovery available to the plaintiffs. The court disagreed.

The boat that sunk was only rated to be workable at wind speeds of 31 miles an hour or less. At 31 miles an hour the boat manual stated the driver should have had a lot of boating skills. The boat was also not positively buoyant; meeting that if the boat filled with water, it would sink and would not stay on the surface. There was also no law or requirement that the boat be buoyant.

One of the main issues facing the defendant in this case was they normally handed out a weather report both at the time of the rental of the boat and the time the boat left the dock. The plaintiffs received a weather report when they completed the paperwork but not in the day they left. However, they did leave the docks a half-hour earlier than when the rental operations normally open.

One risk of using admiralty law to avoid liability in a boating accident is admiralty law does not allow the defendant to use a release. I suspect that a release might’ve been used in this case because the paperwork and renting a boat usually go hand in hand.

The plaintiffs were three couples from Florida, who came to Arizona to vacation. They rented a boat from the marina the intention of going up to see natural bridges and coming back on the same day. They rented the boat before the day they left on their trip. That day they received a weather forecast from the boat rental agent. The forecast changed in the middle of the night and when they picked up the boat, they did not receive a new forecast. On the way back from visiting the Natural Bridges Arch they had to stop at another marina to refill. After leaving that marina they went out into the Lake Powell and on the way back the boat sunk due to high winds.

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

One of the first main issues the court looked at was who could determine if boat rentals should stop because of the weather. Several employees of the defendant testified that wind speeds from 25 to 30 miles an hour, boat rentals were stopped. However, there was no written policy on when boat rentals were stopped and each employee answered with a slightly different answer. More importantly nothing in the transcript indicated that there is any reliable way to determine what the weather forecast was for the wind speed was at the rental operations.

A sub argument of this was not reviewed by the court or raised by the defendant was, whether or not there was a duty on the part of the rental operation to contact the other marina and warn the people not to go back out on the lake. No phone call was made by the rental operation to the other marina.

This argument was futile though because the only way to contact the boat drivers before, or after they left the second marina was by radio. The plaintiff’s never turned the radio turned on.

Ms. Ambrosius did not attempt to call Dangling Rope Marina to have personnel there warn the Prescott Party of the high winds although she knew that the Prescott Party would stop there to refuel. She did not notify any of the tour captains to watch for Boat 647 and alert them of the danger. She did not attempt to call the Prescott Party on the marine radio. (Although that would have been futile because Mr. Brady did not turn on Boat 647’s radio.) In sum, the court finds that Ms. Ambrosius did nothing to locate Boat 647.

The federal statute that the defendant relied upon was the Limitation of Liability Act, 40 6U. S. §§ 30501 – 30512. This statute provides exoneration of liability for the boat owner up to the value of the vessel and freight after the accident. There is an exception to the rule if there is knowledge or is in the law states privity with the owner of the vessel to the possibility of the damage.

The Act does, however, create an exception to that general rule by defining “claim, debt, or liability”: “claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damages, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.”

It is this knowledge or privity that allows the plaintiff to argue that the plaintiff defendant could have stopped them and save their lives.

Admiralty law was created for the transportation of goods and people across the oceans. It was adopted as uniform laws among countries with interests in shipping. As such, many parts of admiralty law make more sense when viewed in this light a boat on the high seas.

There’s a two-step inquiry to determine whether the act shall apply based on the privity or knowledge of the owner of the boat.

Courts use a two-step inquiry to determine whether a petitioner is entitled to exoneration or limitation of liability when sued for negligence. “First, the court must determine what acts of negligence . . . caused the accident. Second, the court must determine whether the shipowner had knowledge [of] or privity [with the person who committed] those same acts of negligence . . . The claimant bears the burden of proving negligence and if successful, the burden shifts to the shipowner to prove lack of knowledge or privity.

In this case, the court held that negligence on the land is similar to negligence in the water. The plaintiffs had to prove that there was a connection between the defendant’s conduct and the plaintiff’s injury.

Torts occurring on navigable waters are governed by maritime law. “The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law.” A claimant must prove “a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between [the] defendant’s conduct and the plain-tiff’s injury.”

The ship owner owes a duty of reasonable care to all passengers on his ship. Or, in this case, the court held the rental operation owes a duty of reasonable care to the people renting his boat.

“Under Maritime law, a plaintiff is owed a duty of ordinary care under the circumstances.” “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case.”

The court found that the defendant breached his duty of reasonable care when it allowed plaintiffs to leave the morning of the accident. “Here, the court concludes that Aramark breached its duty of reasonable care when it allowed the Prescott Party to leave the morning of April 25, 2009.”

This conclusion was reached because the defendant had a duty to warn the renters of the weather issues. This is where this case takes on some concerns that exceed those of the normal rental situation. Hertz never gives your weather forecast when you leave its rental operation with their car.

I suspect that duty was created by the defendant normally providing all renters of its boats with a copy of the weather forecast because that was not done, then it created a duty.

Aramark, primarily Ms. Ambrosius, had a duty to be advised of the current weather forecasts and wind advisories before allowing any party to leave the marina in an Aramark power boat. This is particularly true because, as Aramark knew, in the spring, the weather changed constantly. Phyllis Coon testified that in the spring, shutting down rentals was considered almost on “an hourly basis” because of the erratic weather. And “[s]pringtime is al-ways windy on the lake.”

The second issue the court found or had an issue with, was the boat owner’s manual cautioned that when the winds exceeded 31 miles an hour, the boat should not be driven. Aramark’s only requirement when renting a boat was to make sure that the person was 18 years or older and had a valid driver’s license. Again, the same requirements to rent a car as Hertz used. The court held that a person’s prior ability and experience were important.

The boat owner’s manual cautioned that when wind speeds reached 31 miles an hour, only experienced operators might be able to safely operate the boat. Yet Aramark rented to anyone eighteen years or older, with a valid driver’s license, without regard to that person’s previous boating experience.

All these facts allow the court to conclude that Aramark could possibly be negligent.

The court, when it considers these facts, concludes that Aramark had frequently in the past recognized that high winds could be dangerous to boaters. Aramark should have been aware, if it was not, that high winds were forecast for April 25, 2009. And it was foreseeable to Aramark that if those who had rented Baja 202 Islanders for a trip on Lake Powell the morning of April 25, 2009, were allowed to depart, the boats could sink because of the high winds. It was further foreseeable to Aramark that if the boats sank, particularly in the cold April water, the passengers could suffer injury and even death. Aramark breached that duty when it allowed the Prescott Party to leave.

The next issue is whether or not breach of the duty of the boat renter/defendant was the cause of the injury. Here the court found that by allowing the boating party to leave the other marina that was a factor in the sinking of the boat. “Here, the court concludes that Aramark’s failure to stop the Prescott Party from leaving was a substantial factor in the sinking of Boat 647 and the resulting harm.”

(Which begs the questions, how were you going to stop someone from leaving a marina when their car and lodging were at their destination?)

Both marinas were owned and operated by the same defendant.

The final issue the court was, whether or not there was privity between the defendant and what happened. Privity in admiralty law is a weird definition of the word. In this case, the defendant must prove that they did not have any knowledge of the negligence. Normally, this would make sense when the owner of the boat is sitting on shore thousands of miles away and the captain or a member of the crew does something that was negligent causing the sinking of the boat.

In this case because the boat was a rental and owned by a defendant Corporation the court held all the employees had a duty or had privity to the negligent acts. “When a corporation owns the vessel, the test is whether culpable participation or neglect of duty can be attributed to an officer, managing agent, supervisor, or other high-level employee of the corporation.”

Because the general manager and several employees of the defendant could stop the rental, the court said the discretionary authority to close the boat rentals, was held to have been a negligent act.

Finding this the court held that Aramark could not exonerate or limit its liability in this case. The case would then proceed to trial for the full amount of damages claimed by the plaintiffs. This decision is not a finding of negligence against the defendant only that there was enough negligent for the court to conclude Aramark could be liable.

So Now What?

Here’s a situation whereby trying to be good and help people renting your boats you created your own liability.

The experience of the person running the boat also creates its own nightmares as you well know someone is going to lie to you when they fill out a form asking for experience. The will tell you they have plenty experience when want to rent a boat. The experience issue is a nightmare.  no way you can test someone’s experience or trust them. If they say they can rent a boat, and it sinks, the rental operation is liable for not testing them. If they don’t test now, they are liable.

All six people were from Florida, which is surrounded by water and has thousands of boat able canals, rivers and lakes, and only one person of the six had any boating experience.

The causation issue is another issue that is disturbing. Normally, causation is defined as a closer or more direct relationship between what the defendant does in creating the injury of the plaintiff. Here causation was found by allowing them to leave the marina.

However, that was not the cause of the sinking of the boat. The boat sunk because it was driven improperly in high winds. However, the court then came back and said earlier, that because they didn’t check the boating experience and didn’t hand out the weather report that was also part of the accident. The court created circuitous routes to get to the fact that they wanted the defendant liable in this case.

It is disturbing when it can quickly become a nightmare for any program or business in attempting to help the people coming to its business. Probably in the future the weather forecasts will be in a stack on the desk with a little sign that says weather forecasts take one if you want one. There will be a sign that says the boat should not be operated if the wind speed is above XX miles an hour and there will be a wind gauge nearby.

None of which will do anything save anyone’s life. Boats are rented for weeks and the weather changes. The wind in on a cove could be calm, and you hit the open part of the lake, and the wind is catastrophic. The information you obtained earlier, a day or a week will have no value where you are when trouble starts.

Besides, how many people can effectively guess the wind speed?

I think another issue here, but not written in the opinion is the boat operation’s manual had a specific wind speed where the boat should not be used. Consequently, since the manufacturer suggested the boat not be used at that speed, probably the court thought the rental operation should not rent boats when speeds exceeded the manufacturer’s recommendations.

I also suspect that some type of wind meter will be installed on the marina property so that the rental people can look at the wind and see if it should be rented. But again then who has the ability to make that call to the wind meter when the person rents the boat says the winds find, but by the time they go back to the car get their items they want to take with them and walk out the winds kicked up does the 18-year-old summer intern holding the boat for the people as they enter it have the ability to say hey it’s too windy can’t go. How’s he going to know at the end of the dock? In the future, more people may become injured because they didn’t pick up a weather forecast and didn’t understand what they’re getting into because nobody the defendant is going to stick their neck that is to tell them.

In the past rental, operations have had no liability once the equipment rented leaves the renter’s operation.

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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In re Aramark Sports and Entertainment Services, LLC, 2014 U.S. Dist. LEXIS 121565

In re Aramark Sports and Entertainment Services, LLC, a Delaware limited liability company, as owner of a certain 20′ 2007 Baja Islander 202 for exoneration from or limitation of liability, Plaintiff.

Case No. 2:09-CV-637-TC-PMW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

2014 U.S. Dist. LEXIS 121565

August 29, 2014, Decided

August 29, 2014, Filed

PRIOR HISTORY: In re Aramark Sports & Entm’t Servs., LLC, 289 F.R.D. 662, 2013 U.S. Dist. LEXIS 42692 (D. Utah, 2013)

CORE TERMS: boat, wind, weather, lake, mile, rental, weather forecast, advisory, marina, forecast, zone, morning, bridge, rope, vessel, life jackets, gusts, mph, claimant, privity, high winds, channel, radio, rent, foreseeable, allision, mooring, rig, boating, manager

 

COUNSEL:  [*1] For Aramark Sports and Entertainment Services, a Delaware limited liability company, as owner of a certain 20″ 2007 Baja Islander 202 for exoneration from or limitation of liability, In Re, Counter Defendant: John R. Lund, LEAD ATTORNEY, SNOW CHRISTENSEN & MARTINEAU, SALT LAKE CITY, UT; Matthew W. Starley, LEAD ATTORNEY, SNOW CHRISTENSEN & MARTINEAU (ST GEORGE), ST GEORGE, UT; Terence S. Cox, LEAD ATTORNEY, PRO HAC VICE, Marc A. Centor, PRO HAC VICE, COX WOOTTON GRIFFIN HANSEN & POULOS LLP, SAN FRANCISCO, CA.

For Taranto, Terry The Estate and Heirs of, Taranto, Maryanne The Estate and Heirs of, Defendants, Counter Claimants: Daniel Thomas Benchoff, Marvel Eugene Rake, Jr., LEAD ATTORNEYS, PRO HAC VICE, RAKE PETTI PC, PHOENIX, AZ; Robert S. Prince, LEAD ATTORNEY, KIRTON MCCONKIE, SALT LAKE CITY, UT.

For Prescott, Robert The Estate and Heirs of, Prescott, Katherine The Estate and Heirs of, Defendants, Counter Claimants, Counter Defendants: Casey W. Stevens, LEAD ATTORNEY, PRO HAC VICE, STEVENS & WILLIAMSON PC, ALPHARETTA, GA; Daniel Thomas Benchoff, Marvel Eugene Rake , Jr., LEAD ATTORNEYS, PRO HAC VICE, RAKE PETTI PC, PHOENIX, AZ; Robert S. Prince, LEAD ATTORNEY, KIRTON MCCONKIE, SALT [*2]  LAKE CITY, UT.

For James Brady, Heather Brady, Defendants: Jeffery Scott Williams, LEAD ATTORNEY, Jeffrie L. Hollingworth, NELSON CHRISTENSEN HOLLINGWORTH & WILLIAMS, SALT LAKE CITY, UT; William D. Holm, LEAD ATTORNEY, John T. Masterson, PRO HAC VICE, JONES SKELTON & HOCHULI PLC, PHOENIX, AZ.

For Baja Marine, Defendant: Alex B. Marconi, Craig A. Logsdon, LEAD ATTORNEY, Patrick X. Fowler, PRO HAC VICE, SNELL & WILMER (AZ) ONE ARIZONA CTR, PHOENIX, AZ; Elisabeth M. McOmber, LEAD ATTORNEY, SNELL & WILMER (UT), SALT LAKE CITY, UT.

JUDGES: TENA CAMPBELL, United States District Judge.

OPINION BY: TENA CAMPBELL

OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Aramark Sports and Entertainment Services, LLC (Aramark) owns a fleet of boats on Lake Powell that it rents to the public. On April 25, 2009, one of the Aramark power boats sank with six people on board. Four people, Terry and Maryanne Taranto, and Robert and Katherine Prescott, died in the accident. Two people, James and Heather Brady, survived.

Aramark filed a petition in this court to limit its liability under the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, from claims made by the Taranto Estates, the Prescott Estates and James and Heather Brady (the Claimants). The court held a [*3]  five-day bench trial to resolve the questions of whether any negligent conduct by Aramark employees caused the injury and whether Aramark had privity with the negligent actor or knew of the negligent conduct.

Because the court concludes that negligent conduct by Aramark employees was a cause of the injuries and also concludes that Aramark had privity and/or knew of the negligent conduct, the court denies Aramark’s petition to limit its liability.

FINDINGS OF FACT

  1. THE PARTIES
  1. Aramark

Aramark is a concessionaire for the National Park Service (NPS) in the Glen Canyon National Recreation Area. As concessionaire, Aramark operates the Wahweap Marina, located on Lake Powell just south of the Utah-Arizona border. Aramark operates other marinas on Lake Powell north of the Utah-Arizona border: Dangling Rope, Halls Crossing and Bullfrog.

Aramark will rent a power boat to anyone who is eighteen years or older and has a valid driver’s license. No previous boating experience is required.

Lake Powell’s main channel is 186 miles long when the lake is at high water. In the spring, the water is cold and the weather is frequently windy. The weather is erratic and can quickly change. In April, wind speeds [*4]  often exceed thirty miles an hour and can even reach fifty miles an hour. The weather can be calm at one part of the lake but have high winds and waves at another.

  1. The Claimants

James Brady, Robert Prescott, and Terry Taranto were retired police officers with the St. Petersburg, Florida Police Department. From time to time, they got together socially with their wives. Heather Brady, James Brady’s wife, had recently retired from the St. Petersburg Fire Department after twenty-six years as a firefighter and EMT.

In April 2009, the three couples (the Prescott Party) went on vacation together to Lake Powell. Robert Prescott had previously visited Arizona and Lake Powell and, in Heather Brady’s words, “Bob [Prescott] was familiar with the area so he just lined up all of the places we would go.” (Trial Transcript dated March 4, 2014 (“March 4 Tr.”) at 392 (Dkt. No. 310).)

  1. FRIDAY APRIL 24
  1. Arrival at Wahweap Marina

Members of the Prescott Party arrived at Lake Powell on Friday, April 24, 2009, and checked in at the resort at the Wahweap Marina area. The Bradys and the Prescotts, who arrived at Wahweap Marina on Friday before the Tarantos, went to Aramark’s boat rental office to rent a [*5]  boat for the next day. Phyllis Coon, a rental agent for Aramark, and Karen Ambrosius, Wahweap Marina general manager and the person in charge of boat rentals, were in the office. Mr. Brady, Mr. Prescott, and Ms. Coon discussed Mr. Brady’s previous boating experience,1 the Prescott Party’s plans to travel to Rainbow Bridge, which would take a full day, and the weather forecast for Saturday, April 25, the day the Prescott Party would be on the lake. The weather forecast, which was based on National Weather Service data collected at 3:44 a.m. that Friday morning, predicted the weather on Saturday, April 25 as “Breezy, with a south southwest wind, between 15 and 23 mph, with gusts as high as 37 mph.” (National Weather Service 7-Day Forecast, Ex. J-7.) Given the weather forecast, Ms. Coon suggested that they “might be more comfortable” on one of the tour boats that was available “because it was chilly on the lake and that going in the power boat they would need to go straight up to Rainbow Bridge just to ensure that they get up there, and then stop at Dangling Rope on the way back to fuel up.” (March 4 Tr. at 360 (Dkt. No. 310).) Mr. Brady and Mr. Prescott declined Ms. Coon’s suggestion [*6]  of a tour boat trip, and Mr. Prescott signed the rental contract for a Baja 202 Islander, number 647 (Boat 647). Mr. Prescott was given a copy of the weather forecast (Ex. J-7). Ms. Coon told Mr. Prescott that he would be given an updated weather report the next day before the Prescott Party departed on the boat. But this did not happen.

1 James Brady has some boating experience. He began boating as a young boy, “maybe as early as 10 riding on the boat. Dad and I would fish. From there, high school years running up and down the beach. A friend of mine had a boat. Running up and down the beach. And then my brother, who is now a licensed captain, he went into the fishing scene, so I [rode] on boats with him before, mullet boat.” (Id. at 465 (Dkt. No. 310-1).) Mr. Brady has owned several boats, including a 17-foot Mitchell, a 21-foot Mako, and “a couple Voyagers” (a Voyager is sport fishing boat). (Id.) When asked what percentage of his boating experience was in a lake and what percentage was in an ocean, Mr. Brady answered, “95 gulf or bay inland intercoastal and 5 percent lake.” (Id. at 472-73.) He estimated that the coldest water he had been in was “70, I believe 70, 72 degrees, [in] Florida.” (Id. at 473.)

  1. Boat 647

Boat 647 is just [*7]  over twenty feet in length and can hold eight passengers. U.S. Coast Guard regulations do not require boats over twenty feet in length to have positive flotation, and Boat 647 did not. (A boat with positive flotation has the ability to float and not sink for a period of time even if filled with water.) Boat 647 had a marine band radio that could receive and monitor both the hailing channel (channel 16) and the weather channel. Type II PFDs (life jackets) were on Boat 647.

The Baja 202 Islander is identified as a design category “C” boat that can withstand an upper limit wind speed of 31 miles per hour. (Baja Marine Owner’s Manual, Ex. C at 1.8.) The manual warns: “It is only the most experienced operators and crew that may be able to operate a boat safely under these conditions.” (Id.)

III. SATURDAY APRIL 25

  1. The Weather Forecasts

The National Weather Service maintains a website that is available to the public. Phyllis Coon testified that employees in Aramark’s boat rental office accessed the National Weather Service site for weather information. Moreover, it was Aramark employees’ general practice to keep the marine band radio on at the boat rental office during working hours to monitor [*8]  the weather.

The court reviewed several exhibits that showed the National Weather Service’s forecasts and advisories for April 24 and April 25, 2009. One of those exhibits included the National Weather Service 7-day forecast given to the Prescott Party, which read, “Breezy, with a south southwest wind, between 15 and 23 mph, with gusts as high as 37 mph.” (Ex. J-7.) That forecast, which was the only weather forecast given to the Prescott Party, was last updated at 3:44 a.m. on April 24. At various times after that, on April 24 and April 25, the National Weather Service updated the weather information that, if accessed through the website, would have been incorporated into a 7-day weather forecast similar to the one the Prescott Party received.

In its forecasting system, the National Weather Service divides the United States into geographical areas called “zones” and then issues forecasts for each zone. Two zones relevant to this case are (i) the Arizona Zone 5, which is a fairly small area, just below Lake Powell, and it includes Page, Arizona; and (ii) Utah Zone 21, which covers most of Lake Powell. Zone 21 forecasts give a more accurate prediction of weather conditions on Lake Powell, [*9]  but a comparison of the two zones’ forecasts for the relevant days showed that the forecasts contained similar data. (See Ex. A-120.)

Significantly, the National Weather Service updated the weather forecast at 3:18 p.m. on April 24 (almost twelve hours after issuance of the forecast data given to the Prescott Party) for Zone 5. That update announced a wind advisory in effect from 8 a.m. to 7:00 p.m. on Saturday, April 25, predicting 20 to 35 mile an hour winds and gusts around 45 miles an hour in the late morning and afternoon. (Trial Transcript dated March 7, 2014 (“March 7 Tr.”) at 907 (Dkt. No. 313-1).) A new 7-day forecast, if generated for the Prescott Party when they arrived to pick up Boat 647, would have reflected these changes (i.e., increases in wind speed) and a new wind advisory.2 And shortly before 3 a.m. for Zone 21 the National Weather Service issued a wind advisory for Lake Powell effective from noon on Saturday until 6 p.m. that evening, predicting sustained winds increasing to 25 to 35 miles an hour and gusts to around 55 miles an hour late in the afternoon. (Id. at 902.) A few minutes later, at 3:10 a.m., the National Weather Service issued a wind advisory for Zone 5, Glen Canyon [*10]  and Page, that would be in effect from 8 a.m. until 7 p.m. on Saturday, April 25. (Ex. K. at 40.) That forecast predicted “South winds 15 to 20 mph with gusts to around 35 mph shifting to the southwest 20 to 30 mph with gusts to around 45 mph in the late morning and afternoon.” (Id.)

2 The National Weather Service issues advisories to inform the public about potentially hazardous situations. (March 7 Tr. at 885.)

Alton Ketchersid, Aramark’s resident district manager for water operations at Lake Powell, testified that it was his general practice to print the weather forecast at his home each morning at about 6 a.m. so he could distribute it to the administrative office and to the lodge. In his absence, Carrie Markus, an Aramark employee, would distribute it. Both Mr. Ketchersid and Ms. Markus were gone on April 24 and April 25, 2009.

  1. Pre-Departure Briefing

Because the Prescott Party had asked to leave early the morning of September 25, Bob Graham, a boat rental instructor for Aramark, met them on the dock at about 7:30 a.m. that morning (the boat rental office opened at 8 a.m.). Mr. Graham, who was not a witness at trial but testified through deposition, testified that he gave the Prescott [*11]  Party instructions about the use of the radio, the location of the PFDs, the route to Rainbow Bridge, and the weather forecast (the same one given to the Prescott Party the day before (Ex. J-7)).

According to Mr. Graham, before he met the Prescott Party that morning, he had gone to the rental office before it opened and looked at the weather forecast on the computer. But he testified that the weather forecast he viewed was the same one the Prescott Party had been given the day before.

Mr. Graham testified that he told Mr. Prescott that wind gusts around 37 to 40 miles an hour could be dangerous and that he recommended that the Prescott Party go directly to Rainbow Bridge and return. He told them, “You don’t have time to go sightseeing, to do anything else except go up there and get back before the weather turns bad on you.” (Dep. of Robert Graham at 21.) The Bradys do not remember this discussion.

  1. Stopping Boat Rentals

Aramark did not have a written policy addressing when it would stop renting boats because of weather conditions. But Alton Ketchersid testified that “if we were standing on the dock and the wind was blowing 31 miles an hour, we would not rent the boat, no.” (Trial Transcript [*12]  dated March 3, 2014 (“March 3 Tr.”) at 101 (Dkt. No. 312).) He explained that “it was not a good practice” to do so. (Id. at 102.) He acknowledged that if the wind speed exceeded 31 miles an hour on the lake, it could be “dangerous” for those on the boats. (Id. at 103.) Mr. Ketchersid testified that the decision whether to stop boats from leaving the marina was “mainly based on the safety of the guests.” (Id. at 105.)

Phyllis Coon believed that Aramark had “a general practice” of “shut[ting] down all rentals” if there were sustained winds of thirty miles an hour. (March 4 Tr. at 336 (Dkt. No. 310).) Aramark also would not rent boats if wind or weather advisories were issued.

Jon Maris, who was the former Aramark Director of Operations, testified that if he read a wind advisory predicting gusts of 55 miles an hour, he would shut down rentals. (Dep. of Jon Maris at 47.)

Karen Ambrosius, in her deposition testimony, testified that “[w]here we had sustained winds, . . . meaning constant winds of 30 miles per hour we would not send a boat out.” (March 3 Tr. at 226 (Dkt. No. 312-1) (quoting deposition testimony).) Ms. Ambrosius had the authority and discretion to decide if boat rentals should be shut down. She had previously exercised that [*13]  authority, shutting down boat rentals if sustained winds reached thirty miles an hour or if the National Weather Service had issued a wind advisory.

Robert Grippentog, who with other family members, runs Las Vegas Boat Harbor on Lake Mead, testified in his deposition that his business does not rent power boats if the sustained wind speeds are 25 miles an hour. (Dep. of Robert Grippentog, Jr. at 43.)

According to Horace Schuler, the general manager of Lake Mohave Resort outside of Bullhead City, Arizona, if the weather forecast was for sustained winds of 25 to 35 miles an hour, gusting to 55 miles an hour, the resort would not rent ski boats. (Dep. of Horace Schuler at 105.)

  1. Karen Ambrosius Stops Boat Rentals

Ms. Ambrosius testified that she was unaware of either the updated weather forecasts or the wind advisories. Ms. Ambrosius claimed that it was not until approximately 10:30 a.m., when she heard the National Weather Service wind advisory on Channel 16, that she knew that high winds were predicted. According to Ms. Ambrosius, she then walked outside and looked at the lake. Only then did she decide to end boat rentals.

Ms. Ambrosius also testified that the Prescott Party had told her [*14]  that they would be gone for only half a day. This testimony is contrary to the testimony of Ms. Coon, James Brady, Heather Brady and Robert Graham.

When asked what steps she had taken to alert the Prescott Party of the high winds, Ms. Ambrosius testified that both she and her office manager called the dispatch at the National Park Service and told them that the boat was late. But there is no record of any calls being made to the National Park Service until after Boat 647 had sunk. (Ex. J-39 at BAJA00036, Ex. J-40.) According to Steve Luckesen of the National Park Service, if calls had been made to the National Park Service, they would be reflected in the National Park Service log. (Dep. of Steve Luckesen at 517.)

She also claimed that she called the Aramark parts room, asked that if there was a chase boat available, and said “let them know that we have a boat that is late.” (March 3 Tr. at 250-51 (Dkt. No. 312-1).) Nothing in the record supports this claim, and Ms. Ambrosius admitted that she could not testify that she sent a chase boat to search for Boat 647.

Ms. Ambrosius did not attempt to call Dangling Rope Marina to have personnel there warn the Prescott Party of the high winds although [*15]  she knew that the Prescott Party would stop there to refuel. She did not notify any of the tour captains to watch for Boat 647 and alert them of the danger. She did not attempt to call the Prescott Party on the marine radio. (Although that would have been futile because Mr. Brady did not turn on Boat 647’s radio.) In sum, the court finds that Ms. Ambrosius did nothing to locate Boat 647.

  1. The Prescott Party’s Trip

The Prescott Party left the marina at about 8 a.m. James Brady was operating the boat because he had the most experience. During the trip to Rainbow Bridge, Heather Brady took photographs. Once they arrived at Rainbow Bridge, the party (with the exception of Katherine Taranto) hiked to the Rainbow Bridge monument. When they returned to the dock, they met some hikers who were waiting for a boat to arrive. James Brady tried to call Dangling Rope Marina to tell someone there about the hikers, but he could not contact the marina. He again turned off the radio.

The Prescott Party began the return trip to Wahweap Marina. They stopped, as they had been instructed to do, at Dangling Rope Marina to refuel. Once the boat had been refueled, the Prescott Party left. As they were leaving [*16]  Dangling Rope, Heather Brady saw both a tour boat and a National Park Service boat apparently headed toward Dangling Rope Marina.

  1. Boat 647 Sinks

After the Prescott Party left Dangling Rope, the channel became more open and the water was choppier. Heather Brady moved to the back seat to be more comfortable. No one in the Prescott Party was wearing a life jacket.

When they reached an area of the lake called Padre Bay (on the Utah side of the state line), the water grew rougher and spray came over the bow. Heather Brady felt water at her feet and she called to her husband. She heard him calling “mayday, mayday, mayday, vessel 647” over the radio. (March 4 Tr. at 411 (Dkt. No. 310).) She jumped out of the boat and grabbed one of the life jackets that floated by her. She swam with the life jacket to Terry Taranto and gave it to him. She grabbed another life jacket and swam to her husband. Then Terry Taranto “came over a wave and said, ‘I need a life jacket. I need a life jacket.'” (Id. at 414.) She found an extra life jacket and gave it to him. She and Jim Brady, using the life jackets they found floating in the water and a blue canvas bag that was also in the water, were able to reach a rock pile. [*17]  They climbed on the rock pile and waited until they were rescued by a National Park Service boat. The other members of the Prescott Party did not survive.

When Boat 647 was recovered, it did not have a breached hull. The boat had no value.

CONCLUSIONS OF LAW

Aramark has filed a petition under the Limitation of Liability Act, 46 U.S.C. §§ 30501-30512, seeking exoneration or limitation of liability under 46 U.S.C. § 30505 (titled “General limit of liability”). Section 30505 provides that “the liability of the owner of a vessel for any claim, debt, or liability described in subsection (b) shall not exceed the value of the vessel and pending freight.” 46 U.S.C. § 30505(a) (emphasis added). The Act does, however, create an exception to that general rule by defining “claim, debt, or liability”: “claims, debts, and liabilities subject to limitation under subsection (a) are those arising from any embezzlement, loss, or destruction of any property, goods, or merchandise shipped or put on board the vessel, any loss, damages, or injury by collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of the owner.” 46 U.S.C. § 30505(b) (emphasis added).

Courts use a two-step inquiry to determine whether a petitioner is entitled to exoneration or [*18]  limitation of liability when sued for negligence. “First, the court must determine what acts of negligence . . . caused the accident. Second, the court must determine whether the shipowner had knowledge [of] or privity [with the person who committed] those same acts of negligence . . . .” Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). The claimant bears the burden of proving negligence and if successful, the burden shifts to the shipowner to prove lack of knowledge or privity. Id.

  1. ARAMARK’S NEGLIGENCE

Torts occurring on navigable waters are governed by maritime law. “The elements of a maritime negligence cause of action are essentially the same as land-based negligence under the common law.” Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005) (citations omitted). A claimant must prove “a duty owed by the defendant to the plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal connection between [the] defendant’s conduct and the plaintiff’s injury.” In re Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991).

  1. Duty/Breach

“Under Maritime law, a plaintiff is owed a duty of ordinary care under the circumstances.” In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010). “We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances [*19]  of each case.” Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S. Ct. 406, 3 L. Ed. 2d 550 (1959).

The court in In re Signal Int’l, LLC, 579 F.3d 478 (5th Cir. 2009), gave a thorough analysis of duty in a maritime negligence action. In Signal, the owner of two barges named the MISS TIFF and the JACK KING filed a petition under the Limitation of Liability Act, when the two barges broke loose from their moorings during Hurricane Katrina and allided3 with a bridge located approximately 4.7 miles away on Interstate 10 in Mississippi. The Mississippi Department of Transportation (MDOT) repaired the bridge and opposed Signal’s petition. The Fifth Circuit affirmed the order of the trial court denying, after a bench trial, exoneration but granting limitation of liability.

3 “An allision is a collision between a moving vessel and a stationary object.” Signal, 579 F.3d at 484 n.4 (internal quotation marks and citations omitted).

The trial court found that Signal had used “an improvised, untested method” of securing the two vessels and that Signal’s negligence caused the allision. Id. at 486. Signal argued that it was entitled to exoneration because the damage to the bridge was not a foreseeable consequence of its negligent mooring of the two vessels. The Fifth Circuit rejected Signal’s argument:

The critical question in this case is whether the allision with the Interstate [*20]  10 bridge was a harm of the general sort to an entity of a general class that a reasonably thoughtful person might have anticipated to result from Signal’s negligent mooring of the MISS TIFF and the JACK KING in light of the anticipated natural forces wrought by Hurricane Katrina. As the question makes clear, our analysis does not focus on the particular allision site, but the general risk of allision; it does not focus on MDOT, but on the class of property owners in the paths available to the runaway barges.

Id. at 492. The court cautioned: “The test of foreseeability is not measured against normal conditions, but those that were anticipated or reasonably should have been anticipated.” Id. at 493. Looking at the facts of the case, the court concluded that “the approaching hurricane, the expected height and predicted movement of the storm surge, and the topology of the Pascagoula River basin gave rise to the need to moor the barges and made this allision a foreseeable consequence of negligence in that mooring.” Id.

Here, the court concludes that Aramark breached its duty of reasonable care when it allowed the Prescott Party to leave the morning of April 25, 2009. The court bases this conclusion on the following: [*21]

  1. The weather forecasts and wind advisories

As detailed above, the forecast at 3:18 in the afternoon on April 24 for Zone 5 showed that a wind advisory was in effect from 8 a.m. to 7 p.m. on April 25. Then, around 3 a.m., April 25, the National Weather Service issued wind advisories for both Zone 5 and Zone 21. Yet Ms. Ambrosius denied having seen or heard any forecast that contained that information. According to Ms. Ambrosius, the first she was aware of the wind advisory was when she heard the information on Channel 16 around 10 a.m. the morning of the 25th. But throughout Ms. Ambrosius’ testimony, as the court has noted above, her recounting of the events of April 24 and 25 differed significantly from other evidence. For that reason, the court concludes that Ms. Ambrosius did not have an accurate memory about those events and the court cannot rely on her testimony.

Aramark, primarily Ms. Ambrosius, had a duty to be advised of the current weather forecasts and wind advisories before allowing any party to leave the marina in an Aramark power boat. This is particularly true because, as Aramark knew, in the spring, the weather changed constantly. Phyllis Coon testified that in the spring, [*22]  shutting down rentals was considered almost on “an hourly basis” because of the erratic weather. (March 4 Tr. at 337 (Dkt. No. 310).) And “[s]pringtime is always windy on the lake.” (Dep. of Donald Scott Bergantz at 107.)

Moreover, the water could be very cold in April which could lead to hypothermia if boat passengers were in the water.

  1. Boat 647

The boat owner’s manual cautioned that when wind speeds reached 31 miles an hour, only experienced operators might be able to safely operate the boat. Yet Aramark rented to anyone eighteen years or older, with a valid driver’s license, without regard to that person’s previous boating experience.

Because Boat 647’s length exceeded twenty feet, the boat did not have positive flotation and could not remain afloat when filled with water.

The court, when it considers these facts, concludes that Aramark had frequently in the past recognized that high winds could be dangerous to boaters. Aramark should have been aware, if it was not, that high winds were forecast for April 25, 2009. And it was foreseeable to Aramark that if those who had rented Baja 202 Islanders for a trip on Lake Powell the morning of April 25, 2009, were allowed to depart, the boats could sink [*23]  because of the high winds. It was further foreseeable to Aramark that if the boats sank, particularly in the cold April water, the passengers could suffer injury and even death. Aramark breached that duty when it allowed the Prescott Party to leave.

  1. Causation

Aramark’s negligence is actionable only if its action was the legal cause of the Claimants’ injuries, which is “something more than ‘but for’ causation, and the negligence must be a ‘substantial factor’ in the injury.'” Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992), quoting Thomas v. Express Boat Co., Inc., 759 F.2d 444, 448 (5th Cir. 1985).

Here, the court concludes that Aramark’s failure to stop the Prescott Party from leaving was a substantial factor in the sinking of Boat 647 and the resulting harm. Even though Aramark argues that Boat 647 sank because of the actions of the Prescott Party, the court concludes that the failure to stop the boat from leaving was a substantial factor in the sinking of the boat.

In Thomas v. Express Boat Co., Inc., 759 F.2d 444 (5th Cir. 1985), Lance Thomas, a crewman aboard a rig supply boat, sued the operator of the boat, Express Boat, for injuries he sustained while mooring the rig supply boat to an offshore drilling rig. The rig was owned and operated by Penrod Drilling Company (Penrod). The lower court decided that Penrod was negligent because as part of the mooring [*24]  procedure, it had presented a frayed line to the rig supply boat. (A jury had previously found that Express Boat was negligent and returned a verdict in favor of Mr. Thomas.) The court allocated one-third of the responsibility to Penrod. On appeal, Penrod (and Mr. Thomas, whose damage award was effectively reduced by the allocation of fault) argued that the evidence was insufficient to prove that Penrod’s negligence was a legal cause of Mr. Thomas’ injuries. The appellate court affirmed the trial court’s decision holding that Penrod’s negligence in presenting the frayed rope was more than “but for” causation of Mr. Thomas’ injury and was a “substantial factor in the injury.” Id. at 448. In response to appellants’ argument that the captain of the rig supply boat was negligent and caused the injury because he made the decision to bring in the frayed line, the court stated: “The danger in sending a frayed line to a vessel in such poor weather was certainly foreseeable. Although [Captain] Peterson also may have been negligent in deciding to bring in the line, this does [not] excuse Penrod’s negligence.” Id. The court noted that, “because Penrod’s negligence [in presenting the frayed rope] made [Captain [*25]  Peterson’s] decision necessary, the district court properly concluded that Penrod bears some responsibility for the accident.” Id.

Here, similar to the facts in Thomas, as this order details above, the danger of allowing the Prescott Party to depart the morning of April 25, 2009, certainly was foreseeable to Aramark.4 Regardless of whether the members of the Prescott Party made wrong choices while on the boat, the harm was, at least in part, the result of Aramark’s initial negligence and so Aramark “bears some responsibility for the accident.” Id.

4 See In re: Signal Int’l, LLC, 579 F.3d 478 (5th Cir. 2009), for a discussion of the role of foreseeability in both duty and causation: “We have historically considered foreseeability relevant to both the duty and proximate cause determinations.” Id. at 490 n.12 (citations omitted).

Whether the Prescott Party’s actions contributed to the loss must be resolved in another proceeding.

  1. PRIVITY

Because Claimants have proven negligence, the burden shifts to Aramark to show that it did not have knowledge of the acts of negligence and was not in privity with the negligent actor. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). “When a corporation owns the vessel, the test is whether culpable participation or neglect of duty can be attributed to an officer, managing [*26]  agent, supervisor, or other high-level employee of the corporation.” Carr v. PMS Fishing Corp., 191 F.3d 1, 4 (1st Cir. 1999) (citations omitted).

Aramark has not met its burden. The testimony, including that of the general manager, Karen Ambrosius, was clear that the general manager had the discretion and authority to close boat rentals. In fact, it was Ms. Ambrosius who belatedly made the decision to close rentals on April 25, 2009.

III. CONCLUSION

The court denies Aramark’s petition to exonerate it or limit its liability. The court does not make any findings or reach any other conclusion regarding the other allegations of negligence asserted by the Claimants. It also makes no findings or conclusions concerning whether anyone in the Prescott Party was also negligent. These questions are to be resolved in another proceeding. The court ORDERS that all pending motions are denied as moot.

DATED this 29th day of August, 2014.

BY THE COURT:

/s/ Tena Campbell

TENA CAMPBELL

U.S. District Court Judge

 


“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.

 


An ugly case balancing the marketing program to make people feel safe, which is then used to prove the incident giving rise to the negligence claim, was foreseeable.

YMCA summer camp sued in Indiana for sexual assault on a minor by a predator hiding in the woods. The brochure marketing the program specifically outlined how bathroom procedures were to be done. The procedure was not followed in this case, which led to a successful lawsuit.

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

State: Indiana, Court of Appeals of Indiana

Plaintiff: A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually

Defendant: Young Men’s Christian Association of Greater Indianapolis

Plaintiff Claims: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

Defendant Defenses: Release and Superseding or Intervening Cause

Holding: for the Plaintiff

Year: 2013

First, this is a case based on a sexual assault of a minor at a day or summer camp offered by the defendant. The case is awful, ugly, and sad.

Second, the issue of whether or not the release was valid for the minor’s injuries was never part of the case. The issue is how the defendant’s rules created a small issue for the situation that of course blew up when the problem the rules attempted to prevent occurred.

The minor was enrolled in a day camp offered by the defendant. The camp was for kids in kindergarten through sixth grade. On the day of the incident, 20 minors and three counselors went to a park to go rafting. The group arrived at the park around 2:00 PM.

The park was not known for any incidents, and no one was spotted that day that gave any concern to the counselors.

When the rafting began, one counselor was stationed at the start and two counselors at the end. Shortly after the rafting started the plaintiff minor told one of the counselors he had to go to the bathroom. The public restrooms were a 10-15-minute walk away. The counselor instructed the minor to go pee on a bush that was within her view. The counselor new about the defendant’s bathroom policy.

Raab [counselor] instructed A.M.D. [minor] to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

When the counselor turned her attention to the creek to check on the other children the minor disappeared.

Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D.

Once the counselor knew the minor was missing she started screaming his name and looking for him.

The family of the minor filed suit against the defendant YMCA alleging negligence. The YMCA filed a motion for summary judgment claiming:

1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims.

The plaintiff’s opposed the motion for summary judgment claiming four theories:

…1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue of the exculpatory clause contained in the camper application form signed by Jane Doe.

The trial court granted the defendant’s motion for summary judgment, and the plaintiff’s appealed.

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

The appellate court started by establishing the elements the plaintiff’s must prove to win their case. Indiana uses a three-part test to establish negligence.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.

Whether or not there was a duty owed is also a 3-part test in Indiana.

…(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled.

The trial court found the defendant owed a duty to the minor, and this issue was not argued during the appeal. The issue then was causation.

We have held that causation is an essential element of a negligence claim. The injurious act must be both the proximate cause and the cause, in fact, of an injury. Generally, causation, and proximate cause, in particular, is a question of fact for the jury’s determination.

Causation can be broken by a superseding and intervening causation. This means a third party or third action caused the real injury or interrupted the chain of events for the original cause so that the defendant is not longer liable.

The doctrine of superseding or intervening causation has long been part of Indiana’s common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Meaning that the action of the predator in attacking the minor was a superseding and intervening cause of action.

However, if the superseding or intervening cause of action was foreseeable by the defendant, then it does not relieve the defendant of liability. The Restatement (Second) of Torts §449, known as the very duty doctrine, provides an example.

If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act, whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The brochure the defendant created, stated the rules for the camper’s bathroom procedure. This was obviously not followed by the counselor.

No camper is ever alone, and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

There was additional information requiring the day campers to go to the bathroom in pairs. The defendant also had a code of conduct covering restroom supervision.

[Why is a restroom procedure in a code of conduct?]

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Finally, the court found that counselors were instructed to never leave a child unsupervised.

In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety.

The counselor at her deposition testified she knew the procedures.

The court found this information, provided by the defendants own documents and training, showed the defendant knew this type of incident was foreseeable.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.”

The court found three factors were important in the analysis of the issue.

First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm.

Consequently, the appellate court held that whether or not the criminal act by the third party was foreseeable was for a jury to decide.

Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.

The case was sent back to trial for a jury trial to determine if the actions of the third party were foreseeable.

So Now What?

First, it sucks to have a case like this; however, it has a lot of useful information.

Fifteen to twenty children, some as young as kindergartener’s and three adults for an activity around water, the first issue I suspect most of you thought of was, there are not enough counselors.

Second, with all the written documentation that the defendant created, I don’t believe foreseeability will be difficult to find by the jury. In fact, anyone can argue that the paper was created in response to this possibility, and then obviously the issue was foreseeable.

At the same time, how do you get across to the members of your staff the issues at play here without creating your own noose? Some documentation is required. Create it under the write heading, in the right document if needed. More importantly, train your staff. Don’t just throw paper at them.

Documentation is proof of just being lazy over the winter in this type of situation. Probably because the documentation was found in at least three different places, it was “make work” for three different people. Writing rules down over the winter is easy and lasts for years (decades in too many situations). However, training your staff lasts a lifetime.

Look at who you need to understand what you are writing down. In most cases young men and women who seem not to read much but who can absorb a lot of information. If you expect 20 year olds to read a book for a job, you are your own worst enemy. You are only creating documentation that will be used to prove you or your staff was negligent.

Training allows the information to be absorbed in the way necessary and provides the understanding of the rules. Training says this is how you do it, now show me you know how to do it, and then tell me why you do it this way. Training is a pain for you, and your senior staff, but if you want to solve problems and really help the people, your employees, trains them. Let them know why you have to do things this way and then teach them to do things this way.

Think about it. What is going to be more effective. Giving everyone a book to read at night or creating a scenario from this incident and having your staff act it out and go through the issues.

Don’t create documentation because you have nothing else to do over the winter, or you are trying not to train your staff.

Never create documentation just to punish employees. Those will always come back to haunt you. You can’t sue an employee as a defense anyway, except in extremely rare cases, so why create a situation that will come back to haunt you in other ways.

This is a sad case all around.

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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A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, vs. Young Men’s Christian Association of Greater Indianapolis, 2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

A.M.D., a Minor, by his Parents and Guardians, John Doe and Jane Doe, and John Doe and Jane Doe, individually, Appellants, vs. Young Men’s Christian Association of Greater Indianapolis, Appellee.

No. 49A04-1211-CT-551

COURT OF APPEALS OF INDIANA

2013 Ind. App. Unpub. LEXIS 913; 990 N.E.2d 527

July 19, 2013, Decided

July 19, 2013, Filed

NOTICE: PURSUANT TO INDIANA APPELLATE RULE 65(D), THIS MEMORANDUM DECISION SHALL NOT BE REGARDED AS PRECEDENT OR CITED BEFORE ANY COURT EXCEPT FOR THE PURPOSE OF ESTABLISHING THE DEFENSE OF RES JUDICATA, COLLATERAL ESTOPPEL, OR THE LAW OF THE CASE.

PUBLISHED IN TABLE FORMAT IN THE NORTH EASTERN REPORTER.

SUBSEQUENT HISTORY: Transfer denied by A.M.D. v. YMCA of Greater Indianapolis, 997 N.E.2d 356, 2013 Ind. LEXIS 883 (Ind., Nov. 7, 2013)

PRIOR HISTORY: [*1]

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Heather Welch, Judge. Cause No. 49D12-0805-CT-20350.

Taylor v. State, 891 N.E.2d 155, 2008 Ind. App. LEXIS 1678 (Ind. Ct. App., 2008)

CORE TERMS: summary judgment, camper, causation, counselor, bathroom, staff, proximate cause, restroom, superseding, intervening, exculpatory clause, foreseeability, foreseeable, bush, rafting, looked, matter of law, superseding cause, reasonably foreseeable, duty to supervise, chain of causation, omission, sexual assaults, suspicious, violent, negligent act, question of fact, supervision, supervising, designated

COUNSEL: ATTORNEY FOR APPELLANTS:DANIEL S. CHAMBERLAIN, Doehrman Chamberlain, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: MARK D. GERTH, JEFFREY D. HAWKINS, MICHAEL WROBLEWSKI, Kightlinger & Gray, LLP, Indianapolis, Indiana.

JUDGES: FRIEDLANDER, Judge. ROBB, C.J., and KIRSCH, J., concur.

OPINION BY: FRIEDLANDER

OPINION

MEMORANDUM DECISION – NOT FOR PUBLICATION

FRIEDLANDER, Judge

A.M.D., a minor, by his parents and guardians, John Doe and Jane Doe, and John Doe and Jane Doe individually, appeal from the trial court’s order granting summary judgment in favor of Young Men’s Christian Association of Greater Indianapolis and YMCA of Greater Indianapolis (collectively, the YMCA) in an action brought by the Does alleging negligence against the YMCA. The following issue is presented in this appeal: Did the trial court err by granting summary judgment in favor of the YMCA under the doctrine of superseding causation?

We reverse.

The facts designated to the trial court for purposes of ruling on the motion for summary judgment follow. When A.M.D. was eight years old, he participated in a summer day camp through the YMCA’s Day Camp [*2] Program at Lions Park in Zionsville, Indiana. The camp was offered to children in grades kindergarten through sixth grade. On June 27, 2006, YMCA camp counselors accompanied A.M.D. and the other camp participants to Creekside Park, which is a park immediately adjacent to Lions Park. On that particular day there were fifteen to twenty children, ranging in age from six years old to twelve years old, and three camp counselors at the park.

The purpose of the trip to Creekside Park was to give the children the opportunity to enjoy rafting and playing in and around the water. The camp began that day at 7:00 a.m. and the group walked over to Creekside Park at approximately 2:00 p.m. Until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious.

During the rafting excursion, the counselors were situated such that one counselor, Megan Donaldson, was positioned where the rafting began, and two counselors, Melissa Raab and Jay Binkert, were [*3] positioned where the rafting ended. Shortly after the rafting began, A.M.D. told Raab that he needed to go to the bathroom. Since the public restroom was a ten-to-fifteen minute walk away, Raab allowed A.M.D. to urinate by some bushes that were within Raab’s direct and unobstructed view. Raab instructed A.M.D. to remain by the bush and to return when he was finished. At the time Raab instructed A.M.D. to urinate in the bushes, she knew that the YMCA’s bathroom policy required at least one counselor and one buddy to go with a camper to the restroom. No campers were to go to the bathroom by themselves.

A.M.D. went to the bathroom by the bushes as instructed and was within Raab’s line of sight. Raab momentarily turned her attention towards the creek to check on the other children, and turned her attention away from A.M.D. for less than a minute. When Raab looked back to check on A.M.D., he was gone. Unknown to A.M.D. and the YMCA counselors, there was a sexual predator hiding in the woods near where A.M.D. was going to the bathroom. It was later determined that Stephen Taylor was the person hiding in the woods, and who attacked A.M.D. Taylor was so well hidden that A.M.D. did not see Taylor [*4] approach him from the front until after he had finished going to the bathroom.

Once Taylor emerged from the woods, he approached A.M.D., told him he was a doctor, and offered to give A.M.D. a piggy-back ride, which A.M.D. accepted. Taylor successfully lured A.M.D. farther into the woods where they were both alone and out of sight from any of the YMCA camp counselors. While hidden in the woods, Taylor sexually assaulted A.M.D. Once Raab noticed that A.M.D. was not by the bushes, she immediately began looking for A.M.D. and screaming his name. Ultimately, A.M.D. was found, but the perpetrator had run away. Approximately six months later, Taylor was arrested on an unrelated charge and was subsequently identified as the person who had sexually assaulted A.M.D. Taylor was convicted of a class A felony and was sentenced to fifty years in the Department of Correction. See Taylor v. State, 891 N.E.2d 155 (Ind. Ct. App. 2008), trans. denied, cert. denied, 555 U.S. 1142, 129 S. Ct. 1008, 173 L. Ed. 2d 301 (2009), reh’g denied, 556 U.S. 1148, 129 S. Ct. 1665, 173 L. Ed. 2d 1032; Taylor v. State, No. 06A04-1009-PC-557, 951 N.E.2d 312 (July 29, 2011), trans. denied.

Prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that [*5] were committed at the Lions or Creekside Parks. Prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

On May 7, 2008, the Does individually, and on behalf of A.M.D., filed a negligence action against the YMCA. The YMCA filed a motion for summary judgment in the action presenting the following two claims: 1) The YMCA was not the proximate cause of A.M.D.’s injuries because Taylor’s criminal actions were not reasonably foreseeable; and 2) the exculpatory clause contained in the camper application signed by Jane Doe released the YMCA from any and all claims. The Does filed their opposition to the YMCA’s motion for summary judgment claiming that the following four theories precluded the entry of summary judgment in the YMCA’s favor: 1) The YMCA negligently supervised A.M.D.; 2) the YMCA failed to prevent foreseeable intentional conduct by a third-party; 3) the YMCA did not have to be the sole cause of A.M.D.’s injuries; and 4) the YMCA is not released from its responsibility to A.M.D. and his parents by virtue [*6] of the exculpatory clause contained in the camper application form signed by Jane Doe.

On September 17, 2012, the trial court held a hearing on the YMCA’s motion for summary judgment. In part, the trial court’s order on summary judgment reads as follows:

The Court hereby finds that the Defendant, YMCA, is entitled to summary judgment as a matter of law and the Court hereby GRANTS the Defendant, YMCA’s, Motion for Summary Judgment. The Court hereby DENIES the Plaintiffs’ Partial Motion for Summary Judgment regarding the exculpatory clause. The Court further notes that the Defendant never disputed that they had a duty to supervise A.M.D. Thus, the Court does not find this issue was before the Court and the Court declines to address the Plaintiffs[sic] Motion for Partial Summary Judgment on this issue as it is moot due to the Court’s ruling on the issue of proximate cause. There is no just reason for delay, and [the YMCA] is entitled to judgment in their favor and against A.M.D., a Minor, by His Parents and Guardians, JOHN DOE AND JANE DOE, and JOHN DOE AND JANE DOE, Individually on the Plaintiffs’ Complaint as a matter of law. This Judgment is a full, complete, and final Judgment on the [*7] Plaintiffs’ Complaint as to [the YMCA] in this case. The Clerk of this Court shall enter the Judgment in the Judgment Docket.

Appellant’s Appendix at 21. A.M.D. and the Does appeal. Additional facts will be supplied where necessary.

A.M.D. and the Does contend that the trial court erred by granting the YMCA’s motion for summary judgment and by denying their motion for partial summary judgment on the issue of the impact of the exculpatory clause in the camper application signed by Jane Doe. The trial court included in its summary judgment order specific findings of fact and conclusions of law. A trial court’s specific findings and conclusions are not required, and, while they offer insight into the trial court’s rationale for the judgment entered, and facilitate our review, we are not limited to reviewing the trial court’s reasons for granting or denying summary judgment. Trustcorp Mortg. Co. v. Metro Mortg. Co., Inc., 867 N.E.2d 203 (Ind. Ct. App. 2007). A trial court’s order granting summary judgment may be affirmed upon any theory supported by the designated materials. Id. Additionally, the fact that the parties filed cross-motions for summary judgment does not alter our standard of [*8] review. Id. In that situation, we consider each motion separately in order to determine whether the moving party is entitled to judgment as a matter of law. Id.

A plaintiff seeking damages for negligence must establish (1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty. Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011). “Absent a duty, there can be no breach, and therefore, no recovery for the plaintiff in negligence.” Vaughn v. Daniels Co. (West Virginia), Inc., 841 N.E.2d 1133, 1143 (Ind. 2006). Where the action involves negligent supervision of a child, we have made the following observation:

[T]here is a well-recognized duty in tort law that persons entrusted with children have a duty to supervise their charges. The duty is to exercise ordinary care on behalf of the child in custody. The duty exists whether or not the supervising party has agreed to watch over the child for some form of compensation. However, the caretaker is not an insurer of the safety of the child and has no duty to foresee and guard against every possible hazard.

Davis v. LeCuyer, 849 N.E.2d 750, 757 (Ind. Ct. App. 2006). Our Supreme [*9] Court announced the three-part test for determining whether to impose a duty at common law in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991), viz. (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns, but that analysis is not necessary where the duty is well settled. Northern Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462 (Ind. 2003). Furthermore, the trial court found and the parties do not contest the finding that the YMCA owed a duty to supervise A.M.D.

In this case, the question presented on appeal concerns the issue of causation. We have held that causation is an essential element of a negligence claim. Bush v. N. Ind. Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997). “The injurious act must be both the proximate cause and the cause in fact of an injury. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination.” Correll v. Ind. Dep’t of Transp., 783 N.E.2d 706, 707 (Ind. Ct. App. 2002). In the present case, the trial court entered summary judgment in favor of the YMCA after engaging in an analysis of causation, which we reproduce in pertinent [*10] part as follows:

Summary Judgment Standard

. . . .

11. This Court notes the issue presented by YMCA’s Motion for Summary Judgment only addresses the element of causation. The Court does find under well-settled Indiana Law that the YMCA had a duty to supervise A.M.D. However, the issue for this Court is whether there is a material dispute of fact on the element of proximate cause.

12. In order to prevail in a negligence action, the plaintiff must demonstrate all the requisite elements of a cause of action: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach.” Ford Motor Co. v Rushford, 868 N.E.2d 806, 810 (Ind. 2007). The question of whether the defendant owes the plaintiff a legal duty is generally one of law for the court. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992).

. . . .

17. Causation is an essential element of a negligence claim. Bush v. Northern Indiana Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997), trans. denied (1999). “Proximate cause has two components: causation-in-fact and scope of liability. City of Gary ex rel. King v. Smith & Wesson Corp., 801 N.E.2d 1222, 1243-44 (Ind. 2003). [*11] To establish factual causation, the plaintiff must show that but for the defendant’s allegedly tortious act or omission, the injury at issue would not have occurred. Id. The scope of liability doctrine asks whether the injury was a “natural and probable consequence” of the defendant’s conduct, which in the light of the circumstances, should have been foreseen or anticipated. Id. at 1244. Liability is not imposed on the defendant if the ultimate injury was not “reasonably foreseeable” as a consequence of the act or omission. Id. Therefore, the fundamental test of proximate cause is “reasonable foreseeability”. Lutheran Hospital of Indiana, Inc v. Blaser, 634 N.E.2d 864, 871 (Ind. Ct. App. 1994).

18. Generally, causation, and proximate cause in particular, is a question of fact for the jury’s determination. Adams Twp. Of Hamilton County v. Sturdevant, 570 N.E.2d 87, 90 (Ind. Ct. App. 1991). However, “Where only a single conclusion can be drawn from the set of facts, proximate cause is a question of law for the court to decide.[“] Merchants National Bank v. Simrell’s, 741 N.E.2d 383, 389 (Ind. Ct. App. 2000).

19. In this case, the facts are undisputed and only a single conclusion can be [*12] drawn or inferred from the facts. Therefore, the Court finds that the issue of proximate cause is a question of law not fact.

Appellant’s Appendix at 13-16. The trial court then analyzed cases addressing the issue whether intentional criminal acts of third parties break the chain of causation under the doctrines of superseding and intervening causation.1

1 The Supreme Court described the doctrine as follows:

The doctrine of superseding or intervening causation has long been part of Indiana common law. It provides that when a negligent act or omission is followed by a subsequent negligent act or omission so remote in time that it breaks the chain of causation, the original wrongdoer is relieved of liability. A subsequent act is “superseding” when the harm resulting from the original negligent act “could not have reasonably been foreseen by the original negligent actor.” Whether the resulting harm is “foreseeable” such that liability may be imposed on the original wrongdoer is a question of fact for a jury.

Control Techniques, Inc. v. Johnson, 762 N.E.2d 104 (Ind. 2002) (internal citations omitted)(emphasis supplied).

Our Supreme Court in Control Techniques examined whether Indiana’s Comparative [*13] Fault Act2 had subsumed or abrogated the doctrines of superseding and intervening causation, and the impact of the viability of those doctrines, such that error could be predicated upon the refusal to instruct the jury thereon. In concluding that no instruction on the doctrine of superseding causation was warranted, the Supreme Court stated as follows:

For the reasons expressed below, we agree with the Court of Appeals that no separate instruction is required. In capsule form, we conclude that the doctrines of causation and foreseeability impose the same limitations on liability as the “superseding cause” doctrine. Causation limits a negligent actor’s liability to foreseeable consequences. A superseding cause is, by definition, one that is not reasonably foreseeable. As a result, the doctrine in today’s world adds nothing to the requirement of foreseeability that is not already inherent in the requirement of causation.

Control Techniques, Inc. v. Johnson, 762 N.E.2d at 108. The court went on to hold that the adoption of the Comparative Fault Act did not affect the doctrine of superseding cause. Id.

2 Ind. Code Ann. § 34-51-2-1 et seq. (West, Westlaw current through June 29 2013, excluding [*14] P.L. 205-2013).

The YMCA argues that the trial court correctly found that Taylor’s criminal conduct was a superseding or intervening cause of the harm to A.M.D. and cites Restatement (Second) of Torts § 448 in support. The Restatement provides as follows:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

The YMCA claims that it was not foreseeable that a sexual predator would be lying in wait in the woods in an attempt to sexually molest one of their campers, and in particular, A.M.D.

Restatement (Second) of Torts §449, known as the very duty doctrine, provides as follows: If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, [*15] negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby. At the heart of these concepts is the necessity for an analysis of foreseeability.

The YMCA’s bathroom procedure for the camp, as set forth in the camp brochures provides as follows:

No camper is ever alone and no camper is ever alone with a staff member. All campers will take trips to the bathroom with entire camp and/or camp groups and camp staff. Campers will only use bathrooms inspected for safety by camp staff.

Appellant’s Appendix at 179. Additionally, day campers were to go to the bathroom in pairs, with one counselor present. The YMCA’s Code of Conduct for Day Camp Counselors provided as follows with respect to restroom supervision:

3. Restroom supervision: Staff will make sure the restroom is not occupied by suspicious or unknown individuals before allowing children to use the facilities. Staff will stand in the doorway while children are using the restroom. This policy allows privacy for the children and protection for the staff (not being alone with a child). If staff are assisting younger children, doors to the facility must remain open. No child, regardless [*16] of age, should ever enter a restroom alone on a field trip. Always send children in pairs, and whenever possible, with staff.

Id. at 213.

Further, the counselors were instructed that they shall never leave a child unsupervised. In particular, a day camp counselor, the position Raab held with the YMCA at the time of the molestation, has the general function of directly supervising approximately twelve campers and taking responsibility for each child’s safety. Several of the major responsibilities of the Camp Site Director involved the protection of the campers, such as personally supervising the campers at all times, being directly responsible for the daily safety and schedule of the campers, and maintaining a clean, neat, and safe campsite.

Raab’s deposition testimony indicated her understanding that an eight-year-old child should not be allowed to go to the restroom by himself or wander off because the YMCA did not want the child to get lost, suffer any harm, or be attacked. She further attested to the fact that under the YMCA’s rules campers are allowed to use only those bathrooms inspected by staff to make sure there was no one suspicious lurking around or lingering. Another YMCA employee [*17] attested as follows:

Q: What are the bathroom procedures for the YMCA?

A: For one staff person to accompany two children to the restroom.

Q: And why do you have that procedure or policy?

A: To protect children and to protect the staff.

Q: Protect children from what?

A: Potential child-on-child abusers or any interaction of any kind that’s inappropriate, fighting.

Q: Well, you would also have that policy and procedure for the one staff and two children to prevent sexual molestation from third parties, correct?

A: Correct.

Q: And that’s exactly what happened here; Mr. Taylor came upon the scene, found this child and assaulted him?

A: I can’t . . . .

Id. at 181.

Other designated evidence before the trial court suggested that until the time of the incident giving rise to this appeal, there was nothing out of the ordinary at the park and there were no activities or individuals that gave anyone at the YMCA cause for concern on the day in question. In particular, there was no one at the park who was lingering around, looked out of place, or generally looked suspicious. Furthermore, prior to June 27, 2006, the YMCA was not aware of any criminal incidents or crimes that were committed at the Lions or Creekside [*18] Parks. Additionally, prior to June of 2006, there were no other incidents of violent or sexual assaults reported at Creekside Park. There have been no incidents of violent or sexual assaults reported at Lions Park for at least the past twenty-five years.

We disagree that only one conclusion can be drawn or inferred from the undisputed facts. “[A]n actor need not foresee the exact manner in which harm occurs, but must, in a general way, foresee the injurious consequences of his act.” Rauck v. Hawn, 564 N.E.2d 334, 339 (Ind. Ct. App. 1990). Furthermore, a determination of whether Taylor’s act was a superseding or intervening cause of A.M.D.’s harm such that the original chain of causation has been broken depends on a determination of whether it was reasonably foreseeable under the circumstances that an actor would intervene in such a way as to cause the resulting injury. Scott v. Retz, 916 N.E.2d 252 (Ind. Ct. App. 2009).

In order to make that determination, three factors are pertinent to the analysis. First, courts on review have examined whether the intervening actor is independent from the original actor. Id. Next, we examine whether the instrumentality of harm was under the complete [*19] control of the intervening actor. Id. Third, we examine whether the intervening actor as opposed to the original actor is in a better position to prevent the harm. Id. At a minimum, the facts pertinent to the third factor are in dispute. Whether the criminal assault on A.M.D. by a stranger, Taylor, was foreseeable by the YMCA such that the chain of causation was broken, should be decided by a trier of fact and not as a matter of law.3

3 The trial court did not resolve the issue of whether the exculpatory clause in the camper application signed by Jane Doe released YMCA from liability because the issue was moot. We do not address the arguments pertaining to the release of liability because there is no ruling on this issue subject to our review.

Judgment reversed.

ROBB, C.J., and KIRSCH, J., concur.


No one saw the deceased drown; no one could prove what happened. Campground was not liable for death of a swimmer.

Legally if a tree falls in the woods and no one is around to see it fall it does not make any noise.

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

State: Connecticut, Superior Court of Connecticut, Judicial District of Fairfield at Bridgeport

Plaintiff: Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro

Defendant: Odetah Camping Resort, Inc.

Plaintiff Claims: failure to provide lifeguards and knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

Defendant Defenses: No proximate causation

Holding: for the Defendant

Year: 2015

The defendant is a camping area that allows day users in order to access other recreational opportunities at the campground.

The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. T

The plaintiff and friends entered the defendant’s campground and paid an entrance fee. The campground was adjacent to a large lake. There was a swimming area on the campground and roped off in the lake. Outside of the roped area were two large inflatable platforms, one described as a trampoline and the other described as an “iceberg.”

There were no lifeguards at either the defendant’s pool or the lake area. A single sign was posted that warned that there were no lifeguards at the lake.

The plaintiff and a friend entered the designated swimming area for the purpose of swimming out to the trampoline. The trampoline was just beyond the buoy line. The friend made it to the trampoline. However, the plaintiff, deceased never did.

When it was noticed he was missing 911 was called. A firefighter found the deceased floating just below the surface inside the swimming area. A postmortem autopsy determined the cause of death to be “asphyxia due to submersion.”

No one saw the deceased struggling or in distress, and no one saw him drown.

The case went to trial on two theories:

The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so.

The jury returned a verdict based on the second issue. The defendant filed an appeal.

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

Under Connecticut law to establish a basic or prima facie case, the plaintiff must:

[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] favor.

To win its case the plaintiff must prove negligence.

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.”

The defendants’ defense was no one saw the deceased drown. There was thus no proof of causation.

Interrogatories were provided to the jury. Interrogatories are questions the jury must answer in reaching its decision or in deciding the case. The interrogatory answers seemed to focus on the fight the owner’s manual of the trampoline warned that users should wear life jackets. Life jackets were available to swimmers in a shed on the beach; however, they were not required to be worn.

The plaintiff hired an expert witness who opined that the defendant campground was liable for failing to have safety measures in place, failing to have life guards and failing to have an emergency safety plan. However, these breaches of duty, if true, still had no link to how the decedent died. There was no way to say having one of the missing items identified by the expert witness was not proof that the plaintiff might have lived. “To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct…

The court reversed the jury’s decision because there was no evidence of what happened to the plaintiff. Consequently, there was no relationship, no causal link between the failures to require life jackets to the deceased’s death.

The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.”

The appellate court reversed the jury findings.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what caused this drowning is fatal to the plaintiff’s case.

So Now What?

It is sad when someone dies. However, just because someone dies or a bandage is used, does not mean there is liability and the need to write a check. There must be a connection between something the defendant did wrong and the injury to the victim.

That connection in Connecticut must be an unbroken string of events linking the plaintiff’s injuries to the defendant’s conduct.

 

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De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

De Castro v. Odetah Camping Resort, Inc., 2015 Conn. Super. LEXIS 2297

Adelson Luiz De Castro, Administrator of the Estate of Jose Luiz De Castro v. Odetah Camping Resort, Inc.

FBTCV126026625

SUPERIOR COURT OF CONNECTICUT, JUDICIAL DISTRICT OF FAIRFIELD AT BRIDGEPORT

2015 Conn. Super. LEXIS 2297

September 2, 2015, Decided

September 2, 2015, Filed

NOTICE: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

JUDGES: [*1] Michael P. Kamp, J.

OPINION BY: Michael P. Kamp

OPINION

MEMORANDUM OF DECISION RE DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

PROCEDURAL BACKGROUND

The defendant, Odetah Camping Resort, Inc., has filed a renewal of its motion for directed verdict and a motion to set aside the jury’s verdict.1 The trial commenced on April 28, 2015, and evidence concluded on May 6, 2015, when the defense rested its case. The jury received the charge on the law on May 6, 2015. On May 6, 2015, the jury returned a verdict for the plaintiff, Adelson Luiz DeCastro, Administrator of the Estate of Jose Luiz DeCastro, and awarded total damages of $229,155.96. Regarding the question of comparative negligence, the jury found the plaintiff’s decedent, Jose DeCastro, was 49% responsible for his own injuries.

1 The defendant originally moved for a directed verdict at the close of the plaintiff’s case in chief. At that time, the court reserved decision, and the defendant commenced its defense. On close of the defendant’s case, the matter was submitted to the jury.

The defendant filed its motion to set aside the verdict on May 15, 2015. The plaintiff filed its objection to the defendant’s motion [*2] on May 19, 2015. On June 22, 2015, the court heard the matter at short calendar and took the papers.

The defendant argues in its motion that the plaintiff failed to prove beyond the realm of surmise and speculation that the defendant’s negligence was the proximate cause of the death of the decedent. This argument is based upon a lack of evidence as to what actually caused the decedent to drown.

II

FACTS

After a trial, the jury could have found as follows. On July 7, 2011, the decedent and a group of friends went to the defendant resort located in Bozrah, Connecticut. In order to gain entrance, the decedent paid an entrance fee. The defendant is an approximately 100-acre campground that offers multiple recreational activities. In addition to facilities to accommodate overnight camping, the defendant offers sporting facilities, which include a pool as well as volleyball, tennis, and basketball courts. The defendant abuts a large, thirty-two-acre freshwater lake, which includes a small beach, and offers swimming and boating activities. A portion of the lake that is adjacent to the beach has a designated swim area. The boundaries of the swim area are designated by a rope line and buoys. Just [*3] beyond the roped off swimming area are two inflatable platforms. One was described as a platform or trampoline, and the other was described as an “iceberg.” Both inflatable devices were attractions to be used by the resort guests. The defendant did not provide lifeguards at the pool or lake swim area. A single sign was posted at one end of the beach area, indicating: “No Lifeguard on Duty. Swim at Your Own Risk.” No employees of the defendant directly supervised the lake swimming area.

On July 9, 2011, the decedent and his friend, Saulo Sousa, entered the designated swimming area for the purpose of swimming out to the trampoline just beyond the buoy line. When Sousa reached the rope line, he observed the decedent immediately behind him in the water. The depth of the water at this location was approximately six feet. As Sousa lifted the rope line to duck under it, he observed the decedent diving forward and under the rope. When Sousa reached the trampoline, he climbed on it but did not observe the decedent. After spending a few minutes on the trampoline, Sousa reentered the water and swam to the shore. After unsuccessfully attempting to locate the decedent, employees of the defendant [*4] were notified that he was missing. After a brief search, 911 emergency services were dispatched, and Bozrah firefighters and rescue personnel responded to the scene. When notified that the decedent was last seen in the designated swim area near the buoy line, firefighter Colin Laffey entered the water and located the decedent floating unresponsive just below the surface of the water just inside the buoy line. Laffey testified that he located the decedent in an area where the depth of the water was less than six feet. The decedent was brought to shore, and CPR was administered. The decedent was then transported by ambulance to Backus Hospital, but never regained consciousness and was pronounced dead. A postmortem autopsy determined the cause of death to be asphyxia due to submersion. The postmortem examination was negative for any signs of illness, traumatic injury, or any preexisting medical condition or disease. A toxicology examination was negative for the presence of any drugs, alcohol, or medication.

The decedent’s drowning was unwitnessed despite the fact that there were numerous people in the water and on the beach. Although other members of the decedent’s group, including his [*5] girlfriend, were on the beach adjacent to the swimming area, no one saw him in distress or struggling in the water. He was identified by his friends as a good or strong swimmer.

III

DISCUSSION

Practice Book §16-37 provides, in relevant part: “Whenever a motion for a directed verdict made at any time after the close of the plaintiff’s case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” “Directed verdicts are not favored . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion . . . In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal [*6] quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). “A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn.App. 556, 565-66, 874 A.2d 259 (2005).

Likewise, “[a] trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied . . . A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion . . . This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury.” (Internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 841, 998 A.2d 200, cert. denied, 298 Conn. 905, 3 A.3d 69 (2010), rev’d on other grounds, Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 32 A.3d 318 (2011).

“[T]o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff’s] [*7] favor.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn.App. 447, 455-56, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “The credibility and weight to be attributed to any evidence offered [at trial] is solely within the province of the jury.” Murteza v. State, 7 Conn.App. 196, 208-09, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). “[I]t is not the function of [the trial] court to sit as the seventh juror when [it] review[s] the sufficiency of the evidence . . . rather, [it] must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [trier’s] verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable . . . In other words, [i]f the [trier] could reasonably have reached its conclusion, the verdict must stand, even if [the trial] court disagrees with it.” (Internal quotation marks omitted.) O’Connor v. Larocque, 302 Conn. 562, 612, 31 A.3d 1 (2011).

“In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury . . . A defendant’s duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under [*8] the circumstances . . . After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant’s negligence caused the plaintiff’s injuries. To do so, the plaintiff must first establish causation in fact, that is, that the injury would not have occurred but for the actor’s conduct . . . The plaintiff then must show proximate cause . . . Proximate cause requires that the defendant’s conduct [was] a substantial factor in bringing about the plaintiff’s injuries and that there was an unbroken sequence of events that tied [the plaintiff’s] injuries to the [defendant’s conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident. The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture or surmise.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Insurance Company, 310 Conn. 768, 776-77, 83 A.3d 576 (2014).

The defendant’s primary argument is that no one [*9] witnessed the decedent’s drowning, and there was no evidence offered as to what caused him to drown. The defendant relies on Wu v. Fairfield, 204 Conn. 435, 528 A.2d 364 (1987). In Wu, the plaintiff’s decedent who was fifteen years old, went to Lake Mohegan, a freshwater lake, with her mother and two brothers for an afternoon of swimming. Id., 437. There was a designated swim area marked by a buoy line. At the time of the occurrence, there were four lifeguards on duty. Id. Those lifeguards had observed that the plaintiff’s decedent was a poor swimmer and had warned her twice to return to the shallow portion of the designated swim area. Id. When an approaching storm prompted the lifeguards to clear the water, the plaintiff’s decedent did not return to shore. Id. After a search, one of the lifeguards found the decedent’s body at the bottom of the lake in the designated swim area but beyond the shallow portion. Id., 437-38. The plaintiff alleged that the town and several of its employees, the lifeguards, were negligent in the performance of their duties. Id., 436. A jury returned a verdict for the defendants. Id. The plaintiff then filed a motion to set aside the verdict, which motion was denied. Id. In affirming the trial court’s denial of the plaintiff’s [*10] motion to set aside the verdict, the court held that “[w]hile it is undisputed that the decedent drowned, there was no evidence tying any negligence on the defendant lifeguards’ part to her death . . . Here, the plaintiff presented no evidence other than that the victim perished in an unwitnessed drowning. The plaintiff failed to establish an unbroken sequence of events causally flowing from the defendant lifeguards’ arguably negligent supervision to the decedent’s drowning.” Id., 440.

In this case, the plaintiff’s May 4, 2015 amended complaint contained two specifications of negligence as to the conduct of the defendant. The first allegation was that the defendant was negligent in failing to provide lifeguards. The second allegation was that the defendant was negligent when it knew or should have known of the danger associated with encouraging its guests to swim to its recreational flotation devices, yet failed to take reasonable steps to secure their safety in doing so. In response to jury interrogatories submitted by the court the jury found that the defendant was negligent with regard to the second specification but not the first. With regard to the claim of negligence concerning encouraging [*11] swimmers to use the flotation devices, the plaintiff relied on testimony that the owner’s manual for the two devices contained warnings that recommended users wear life vests. Although life vests were available in a shed adjacent to the lake swim area, the defendant did not require guests entering the lake or using any of the flotation devices to wear them. In addition, the plaintiff argued that the defendant failed to properly supervise and monitor the swimming area and had an inadequate emergency rescue plan.

The plaintiff offered the testimony of Gerald Dworkin, an aquatic safety expert. Dworkin offered opinion testimony regarding the defendant’s lack of safety measures including its failure to have lifeguards monitoring the swim area. Dworkin was also critical of the defendant’s lack of an emergency safety plan. Dworkin did not, however, offer any opinion testimony as to what actually caused the decedent to drown. He affirmed that it was an unwitnessed drowning. In addition, although the owner’s manuals for the flotation devices recommended the use of life vests, the decedent was not using either device when he drowned; the little evidence there is indicates he never left the designated [*12] swim area. The flotation devices were located outside that designated area.

Here, as in Wu, the plaintiff presented no evidence other than that the decedent died in an unwitnessed drowning. There was no evidence as to what caused the decedent to drown. In the absence of any such evidence, any number of factual possibilities could explain this accident. Without any evidence as to what caused this unfortunate incident, only speculation and conjecture could link the plaintiff’s drowning to the negligent conduct of the defendant. The plaintiff failed to present any evidence to establish an unbroken sequence of events causally flowing from the defendant’s conduct that the jury found negligent to the decedent’s drowning. “The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail.” Wu v. Town Of Fairfield, supra, 204 Conn. 441.

Viewing the evidence in the light most favorable to the plaintiff, based on the evidence presented by the plaintiff, no reasonable juror could find that the negligence of the defendant caused or was a substantial factor in causing the decedent’s death by drowning. The lack of any evidence as to what [*13] caused this drowning is fatal to the plaintiff’s case.

IV

CONCLUSION

Because the plaintiff failed to establish that the negligent conduct of the defendant was the proximate cause of the decedent’s drowning, the defendant’s motion to set aside the verdict is granted. Judgment may enter for the defendant.

KAMP, J.


Skier is unable to hold ski area liable in Vermont for injuries received in an unknown way from an unknown person.

Second Circuit bends over backwards to assist pro se plaintiff who fails to prove his case.

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

State: Vermont, United States Court of Appeals for the Second Circuit

Plaintiff: Paul A. Gemmink,

Defendant: Jay Peak Inc.

Plaintiff Claims: negligently permitted dangerous jumps on its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side

Defendant Defenses: No Duty and No Negligence

Holding: For the Defendant

Year: 2015

This case is a rarity; it is a decision by the Second Circuit Court of Appeals. That court is one step below the US Supreme Court and one of the highest courts in the land. Consequently, to have any of the federal appellate courts issue an opinion about a skiing case is very rare. The Second Circuit Court of Appeals hears appeals from federal courts in New York, Connecticut, and Vermont.

The second issue making this case rare but sort of explains the reason why the Second Circuit heard the case, is the case is Pro Se. That means the Plaintiff was representing himself without an attorney. Pro Se cases are rarely successful and are very difficult for all the parties involved because of the procedural issues a litigant must follow to stay in court. Lawyers take a yearlong class on civil procedure in law school and work overtime not to miss procedural deadlines.

At the same time, judges bend over backwards and here the Second Circuit did too, to make sure the Pro Se litigant has the best opportunity to have his or her day in court.

Consequently, when the plaintiff, Gemmink, who was pro se lost at the trial level and successfully filed an appeal to the Second Circuit, the court based on the decision bent over backwards to respond to the plaintiff’s claims.

The plaintiff and his daughter were skiing at the defendant ski area Jay Peak. The plaintiff was following his daughter down the hill. The daughter reached the bottom of the hill and realized her father was not with her.

The plaintiff was found unconscious or regaining consciousness and combative up on the hill by the ski patrol. The plaintiff had no memory of what happened.

The plaintiff was found near trees. The daughter had seen a ski jump close to the location of where her father was found “leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink.” The plaintiff’s injuries were such that he attributed them to someone coming from the right and were consistent with the theory that someone going over the jump hit him.

Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore, at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.

The trial court dismissed the claims of the plaintiff for failing to establish that the defendant’s alleged negligence was the cause of his injuries. The plaintiff successfully filed this appealed to the Second Circuit Court of Appeals.

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

The court, as usual started its decision with the requirements for a party to defeat a motion for summary judgment.

Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.”

The court adopted the theory relied upon by the trial court, that the structure and maintenance of the alleged ski jump was sufficient to cause the injuries the plaintiff claimed based on the facts the plaintiff alleged. Again, this is rarely done when all parties are represented by attorneys. The attorney relying on this assumption would have to prove it using evidence.

The court then summarized its requirements in this case to determine whether the plaintiff presented enough evidence for a jury to rule in his favor.

The issue before us, then, is a not-infrequent one in tort cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.

Thus the issue was explained to require a showing of evidence sufficient to prove that the defendant was the reason why the plaintiff was injured, and that injury was based on a breach of duty to the plaintiff by the defendant ski area.

Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that, in fact, occurred?

Here the court obviously looked at the issue as to whether the plaintiff assumed the risk, not based on what the defendant had done or failed to do, but based on whether the sport or the actions of the plaintiff were the cause for his injuries.

In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Here the evidence was solely circumstantial. There was no video, no witnesses, and no pictures, nothing to assist the plaintiff in proving his case other than the plaintiff and his daughter’s opinion and the injuries which could be been occurred as the plaintiff surmised. When only circumstantial evidence is available at trial, then the burden to prove the facts falls on the party using the evidence, but that burden is greater because of the nature of the evidence.

First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis of finding negligence under the doctrine of res ipsa loquitur.

In this case, the only party with any knowledge or access to the information was the plaintiff, thus the plaintiff had the sole burden to prove his circumstantial evidence.

Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

The court then brought in another issue, whether the circumstantial evidence offered by the plaintiff under the law of the state that is being applied, Vermont, allows for an error in determining the value or likelihood of the evidence. Meaning if there is a gray area in valuing the evidence does state law fall one way or the other, in making the final determination on its value.

If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished.

The court then applied the three factors to this case. The first was whether there was a legal link between the maintenance of the ski jump and the injuries of the plaintiff. Maintenance in this case does not mean creation or grooming of the jump as in a terrain park, but whether the jump was allowed to exist by the defendant. The court found that any link was too tenuous to allow.

The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency.

This, the first argument, went in favor of the defendant. The court added in reaching this decision, that the plaintiff offered no additional evidence or expert witness to show a stronger link.

Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well-founded knowledge and can do no more than indulge in mere speculation.

The second issue, who had evidence on what happened, the court found neither side won or actually it was a neutral result based on an analysis. “The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.”

The third factor was interesting. Applying the test of how the state wanted the court to decide when faced with an issue that was “close call” or in a very small gray area. Here the court found that under Vermont law, the liability of a ski area is almost strict liability. That means liability with no room for error or limited if any defenses. Own a ski area and you own the safety of the people you invite to ski on the mountain.

We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

The court determined that Vermont follows the approach of symmetrical indifference. Vermont still allowed the defense of assumption of the risk for injuries caused by engaging in a sport. The court then found that Vermont prefers to err on the side of finding no causation. Meaning any cause of the injury must be proven not just alleged. If there was a gray area after analysis by the court, meaning if there was no clear decision, then Vermont law held there was not caused, thus no negligence.

By statute, although assumption of risk has generally been subsumed in comparative negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred.

The Vermont law concerning ski areas was proof of that issue. (See Vermont Skier Safety Act.)  Vermont law was interpreted by Vermont courts to offer a symmetrical approach how Vermont wants a court to consider the facts.

The court then applying the factors controlling how Vermont law was to be applied and found it could not find a link between the defendant ski area Jay Peak and the plaintiff’s injuries. There was no causation or link between the two that could be upheld legally.

Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

For negligence to exist, there must be a duty, a breach of that duty and injury and proximate causation. Here the court did not look at whether or not there was a duty, but just focused on whether there is a legal relationship, causation, between the injuries and anything the defendant had done.

The Second Circuit Court of Appeals upheld the trial court decision and affirmed the dismissal of the plaintiff’s case.

So Now What?

As you can tell the court jumped through narrow hoops to provide a way to say to the plaintiff you did not prove your case and based on what you have provided cannot prove your case. I seriously doubt the court has ever created such a difficult to write and understand, yet reasoned decision before.

When confronted with a pro se plaintiff, I constantly begged them to find an attorney. I wanted someone other than the opposing attorney to explain what was going on and why. I copied and sent the law, sent notices of deadlines and requirements all in an attempt to allow the court to rule in my favor. Not because of what I did, but because the opposing side had no case and the court did not need to extend the case any longer than necessary before ruling to make sure the opposing party received a fair and just hearing.

This decision also would have been much different in most other states that allow skiing. Vermont, the largest ski state in the East has always held that ski resorts are liable for the injuries of its patrons. (See The very first lawsuit against a ski area reviewing Wright et al. v. Mt. Mansfield Lift, Inc., et al. 96 F. Supp. 786; 1951 U.S. Dist. LEXIS 2524) Because of Vermont’s unique view of the responsibility of a ski area, to dismiss a case against a ski resort creates a difficult decision when explaining a case clearly without any evidence of fault against the defendant ski area.

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Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

Gemmink v. Jay Peak Inc., 807 F.3d 46; 2015 U.S. App. LEXIS 20768

Paul A. Gemmink, Plaintiff-Appellant, — v. — Jay Peak Inc., Defendant-Appellee.

Docket No. 14-2725-cv

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

807 F.3d 46; 2015 U.S. App. LEXIS 20768

August 19, 2015, Argued

November 30, 2015, Decided

PRIOR HISTORY: [**1] Pro se plaintiff Paul Gemmink was injured while skiing at defendant Jay Peak’s ski resort. Although Gemmink could not recall the circumstances of his injury, he came to believe that he had been injured in a collision with another skier as a result of Jay Peak’s negligent maintenance of ski jumps on its property. As a result, Gemmink brought an action to recover against Jay Peak for his injuries. The District Court granted summary judgment to Jay Peak, finding that Gemmink had failed to establish that any negligence on the part of Jay Peak was the cause of Gemmink’s injuries. We affirm the judgment of the District Court.

Gemmink v. Jay Peak, Inc., 2014 U.S. Dist. LEXIS 87912 (D. Vt., June 23, 2014)

CASE SUMMARY:

OVERVIEW: HOLDINGS: [1]-The district court properly granted a ski resort summary judgment dismissing plaintiff’s negligence suit because the causal link between the resort’s assumed negligence in its maintenance of ski jumps and the injuries incurred by plaintiff was far too attenuated to sustain his claim, as there was no evidence as to how he sustained those injuries.

OUTCOME: The judgment was affirmed.

CORE TERMS: causation, ski, summary judgment, trail, skier, jump, sporting events, happened, intersection, ski jump, circumstantial evidence, coming, stairs, evidence to support, access to information, inter alia, expert testimony, assumption of risk, indifferent, nonmoving, proffered, opposing, stronger, proffer, harmful, causal, skiing, dark, infer

LexisNexis(R) Headnotes

Civil Procedure > Summary Judgment > Appellate Review > Standards of Review

[HN1] An appellate court reviews a grant of summary judgment de novo.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Absence of Essential Element of Claim

Evidence > Procedural Considerations > Burdens of Proof > Allocation

[HN2] Where the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can point to an absence of evidence to support an essential element of the nonmoving party’s claim.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Nonmovants

Civil Procedure > Summary Judgment > Evidence

[HN3] In ruling on a motion for summary judgment, the court draws all inferences in favor of the nonmoving party, but the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.

Evidence > Relevance > Circumstantial & Direct Evidence

Torts > Negligence > Causation > Cause in Fact

Evidence > Procedural Considerations > Burdens of Proof > Allocation

Evidence > Procedural Considerations > Burdens of Proof > Burden Shifting

[HN4] A showing of cause-in-fact almost always involves circumstantial evidence. Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. Is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that in fact occurred? In such circumstances, a jury can assume that the injury occurred as the expected or ordinary result of the defendant’s conduct. If for some reason it was not the ordinary result of the defendant’s conduct, that the “extraordinary” had occurred must be shown by the party wishing to counter causation. For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

Torts > Negligence > Causation > Cause in Fact

Evidence > Procedural Considerations > Burdens of Proof > Allocation

Evidence > Relevance > Circumstantial & Direct Evidence

[HN5] In addition to considering the strength of the circumstantial evidence linking injury and harm, the cases dealing with questions of causation take into account two other factors. First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis of finding negligence under the doctrine of res ipsa loquitur. But it also serves as a basis for finding causation. Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

Torts > Negligence > Causation > Cause in Fact

Evidence > Relevance > Circumstantial & Direct Evidence

[HN6] In deciding whether sufficient proof of causation has been proffered to get to a jury, courts consider whether the law of the jurisdiction is indifferent as to error in one direction or the other. If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished.

Torts > Negligence > Causation > Cause in Fact

Torts > Negligence > Defenses > Assumption of Risk > Athletic & Recreational Activities

Torts > Negligence > Defenses > Assumption of Risk > Procedure

[HN7] By statute, although assumption of risk has generally been subsumed in comparative negligence, Vt. Stat. Ann. tit. 12, § 1036, it has been expressly retained as to sporting events, Vt. Stat. Ann. tit. 12, § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently “obvious and necessary” as to be assumed generally forms a jury question under Vermont law. Vermont wants courts to treat errors in this area pretty much symmetrically.

COUNSEL: PAUL A. GEMMINK, Pro se.

THOMAS P. AICHER, Cleary Shahi & Aicher, P.C., Rutland, VT, for Defendant-Appellee.

JUDGES: Before: CALABRESI, STRAUB, POOLER, Circuit Judges. Judge POOLER joins only Parts I and II(B) of the opinion.

OPINION BY: CALABRESI

OPINION

[*47] CALABRESI, Circuit Judge:

I. BACKGROUND

On February 21, 2011, Paul Gemmink and his daughter, Christine, visited the [*48] Jay Peak ski resort in Jay, Vermont. The two skied down the Northwest Passage trail, with Christine preceding her father as she turned onto the Kokomo trail, which intersected the Northwest Passage trail. When Christine reached the base [**2] of the ski lift at the end of the trail, she noticed that her father had failed to follow her descent. Instead, a Jay Peak ski patroller would find Gemmink “combative and in obvious pain,” lying on his back by a tree on the left side of the Kokomo trail, near the Kokomo-Northwest Passage intersection. App’x at 31. Gemmink had been rendered unconscious and, though argumentative, could not recall or provide an account of the incident. Christine, however, had observed a ski jump situated near the trees on the right side of the intersection, leading her and her father to surmise that another patron “fl[ew] of[f] the jump” and collided with Gemmink. Id. at 30, 32. Gemmink suffered fractures to his left ribs and left transverse processes in the incident, injuries that, according to Gemmink, are usually attributable to a significant impact coming from right to left, and are therefore at least consistent with the theory that a skier jumped from the right of the intersection into Gemmink.

Proceeding pro se, Gemmink brought this action against Jay Peak to recover for injuries that he claims were sustained as a result of Jay Peak’s negligence. Specifically, Gemmink asserts that Jay Peak negligently permitted dangerous jumps on [**3] its ski trails and that, in consequence of such a constructed jump at the Kokomo-Northwest Passage intersection, Gemmink suffered a collision with another skier resulting in harm to his left side. The District Court (Murtha, J.) granted Jay Peak’s motion for summary judgment, finding that Gemmink had failed to establish that Jay Peak’s alleged negligence was the cause of his injuries. Gemmink now appeals.

II. DISCUSSION

A.

[HN1] This Court reviews a grant of summary judgment de novo. Amerex Group, Inc. v. Lexington Ins. Co., 678 F.3d 193, 199 (2d Cir. 2012). [HN2] Where, as here, the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can “point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). [HN3] The court draws all inferences in favor of the nonmoving party, but the opposing party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015).

Before the district court, it was assumed that the negligence of Jay Peak in the structure and maintenance of the jumps was sufficiently made out to survive summary judgment. Accordingly, for purposes of this opinion, we will assume arguendo that Gemmink has established such [**4] a potential basis for liability on the part of Jay Peak. The issue before us, then, is a not-infrequent one in torts cases: whether the plaintiff proffered sufficient evidence for a jury to find, more probably than not, that the ground for liability (here, the assumed negligence) was the cause of the plaintiff’s injury.

As Professor Abraham has demonstrated in his recent article, [HN4] a showing of cause-in-fact almost always involves circumstantial evidence. See Kenneth S. Abraham, Self-Proving Causation, 99 Va. L. Rev. 1811, 1815-16 (2013). Thus, in considering whether a plaintiff has proven causation, a trier of fact asks whether it is [*49] likely that the harm that occurred resulted from the negligence (or from another basis of liability) attributed to the defendant. In other words, is the reason that the defendant’s behavior is deemed risky, and the defendant deemed potentially liable, the harm that in fact occurred?

In such circumstances, as then-Chief Judge Cardozo set out in Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (N.Y. 1920), a jury can assume that the injury occurred as the expected or ordinary result of the defendant’s conduct. Id. at 816. If for some reason it was not the ordinary result of the defendant’s conduct, that the “extraordinary” had occurred must be shown by the party [**5] wishing to counter causation. For example, if a defendant proprietor has failed to install lights on its stairways after dark, and a person coming down the stairs in the dark of night falls and injures himself, one can fairly assume that the failure to illuminate the stairs caused the injury. And it will be up to the defendant to show that something extraordinary happened, say, that an animal scampered up the stairs and tripped the injured person instead. In essence, the greater the risk that the defendant’s conduct will result in the harm the plaintiff suffered, the more likely that a jury will be allowed to find that such conduct was the cause of that harm.

[HN5] In addition to considering the strength of the circumstantial evidence linking injury and harm, however, the cases dealing with questions of causation take into account two other factors. First, where one party has knowledge or access to information that renders that party better able than his adversary to explain what actually transpired, courts have tended to put the onus on that party to do so. This principle–that the party with superior knowledge bears the burden of coming forward with evidence–has always served as a basis [**6] of finding negligence under the doctrine of res ipsa loquitur. See, e.g., Griffen v. Manice, 166 N.Y. 188, 194-96, 59 N.E. 925 (1901). But it also serves as a basis for finding causation. See Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d 112, 120-21 (2d Cir. 2006); Williams v. KFC Nat. Mgmt. Co., 391 F.3d 411, 431-32 (2d Cir. 2004) (Calabresi, J., concurring). Thus, the requirement that the plaintiff be able circumstantially to show a link between the expected risk of defendant’s conduct and what actually occurred tends to be greater when the plaintiff is better able to explain what happened, and is considerably less when, instead, it is the defendant who can better or more easily proffer evidence of what, in fact, occurred.

But cases of this sort also involve a third factor. Thus, [HN6] in deciding whether sufficient proof of causation has been proffered to get to a jury, courts consider whether the law of the jurisdiction is indifferent as to error in one direction or the other. If an erroneous finding of causation is, in the law of the jurisdiction, more harmful than an erroneous finding of no causation, the requirements of circumstantial evidence and knowledge grow stronger. Conversely, where the law of the jurisdiction makes clear that an erroneous finding of no causation is more harmful, the requirements are diminished. Compare Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d at 121 (finding summary judgment against plaintiff appropriate [**7] because, inter alia, New York courts placed only a minimal duty on the defendant to avert the type of harm incurred, which is “close to saying that if an error is to be made in this context, it is better made in favor of the defendant“) (emphasis added), with Williams v. KFC Nat. Mgmt. Co., 391 F.3d at 432 (finding summary judgment against plaintiff inappropriate because, inter alia, of “the absence of any reason to [*50] prefer erring in favor of [the defendant] rather than the plaintiff”).

B.

With these three factors in mind, we turn to the case before us. The first factor favors the defendant. The causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred by the plaintiff is far too attenuated to sustain Gemmink’s claim. Our common experience does not tell us that this kind of lack of maintenance results in accidents of this sort with any frequency. And plaintiff has failed to proffer expert testimony suggesting a stronger link. See Human Rights Comm’n v. LaBrie, Inc., 164 Vt. 237, 668 A.2d 659, 667 (Vt. 1995) (“Generally, expert . . . testimony is required to support a finding of causation where the link is obscure and abstruse such that a layperson can have no well founded knowledge and can do no more than indulge in mere speculation.”) (internal quotation marks [**8] omitted).

The second is, at most, neutral. Neither Gemmink nor Jay Peak has greater knowledge or access to information concerning what actually happened on the Kokomo trail.

We turn, then, to the third factor: Is this an area where, in Vermont, liability of ski operators to skiers is close to strict, so that whether negligence was the cause of the alleged injury is a matter that, in uncertainty, should be decided in favor of the skier? Or is this an area where the risk of injury, even in the presence of negligence on the part of the ski operator, is assumed primarily by the skier, so that the requirement of causation is fairly placed on the skier (unless either (a) the evidentiary link between the evidence of negligence and causation of the kind of harm that occurred is particularly strong, or (b) the defendant is in a distinctly better position to tell us what happened)? Or, finally, is Vermont relatively indifferent to error in one direction or the other, offering no reason to favor either the plaintiff or defendant?

A review of Vermont law suggests that it follows the approach of symmetrical indifference. [HN7] By statute, although assumption of risk has generally been subsumed in comparative [**9] negligence, 12 V.S.A. § 1036, it has been expressly retained as to sporting events, 12 V.S.A. § 1037. This would suggest that Vermont prefers to err on the side of finding no causation with respect to sport injuries like the one that here occurred. At the same time, however, the decision of whether the risk borne by the plaintiff in the sporting event was sufficiently “obvious and necessary” as to be assumed generally forms a jury question under Vermont law. See Estate of Frant v. Haystack Grp., Inc., 162 Vt. 11, 641 A.2d 765, 770-71 (Vt. 1994) (rejecting the conclusion that “by enacting § 1037, the legislature intended to provide more protection from liability for ski areas” and stating that “§ 1037 is broad enough . . . [that s]kiers should be deemed to assume only those skiing risks that the skiing industry is not reasonably required to prevent,” as determined by “a jury [applying] a contemporary sense of what constitutes an obvious or necessary risk”). Vermont’s approach stands in notable contrast both to Connecticut, where participants in sporting events rarely assume the risk of that participation, see, e.g., Jagger v. Mohawk Mt. Ski Area, Inc., 269 Conn. 672, 849 A.2d 813, 827 (2004), and to New York, where assumption of risk is powerfully applied by courts to bar recovery by participants in sporting events, see, e.g., Martin v. New York, 64 A.D.3d 62, 878 N.Y.S.2d 823, 825-26 (App. Div. 3rd Dept. 2009); N.Y. Gen. Obl. Law § 18-106. This contrast reinforces [*51] our conclusion that Vermont [**10] wants us to treat errors in this area pretty much symmetrically.

Consequently, we are left to infer causation, then, from only the placement of the ski jumps and the nature of Gemmink’s injuries. We cannot infer a causal link between Jay Peak’s assumed negligence in its maintenance of ski jumps and the injury incurred on the facts presented, and the plaintiff does not provide sufficient evidence to support a link between his injuries and alleged theory of causation. Under these circumstances, the district court was clearly correct in its holding that the evidence adduced by Gemmink was not sufficient to raise a question for the jury.

III. CONCLUSION

The judgment of the District Court is, therefore, AFFIRMED.


If you are injured by someone because they were avoiding someone who was negligent, can you sue the person who was negligent?

This is a little off subject for me but something I’ve always wondered about. Here a car moves into the bike lane and the first rider stops; the second rider hits the first, injured and sues the driver.

Stone v Neustradter, 129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450

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

Plaintiff: Carol M. Stone and Roger E. Stone

Defendant: Jesse D. Neustradter and Craig E. Brittin

Plaintiff Claims: Negligence

Defendant Defenses: No Negligence

Holding: For the Plaintiff

Year: 2015

The facts are argued two different ways in this appeal; however, the court accepted the plaintiff’s version. The plaintiff was riding behind her husband. A car driven by the plaintiff moved into the bike lane. The husband took evasive actions to avoid being hit by the car and collided with his wife the plaintiff.

Here are the facts from the decision.

Defendants’ submissions included the deposition testimony of the husband, who testified that he was bicycling just ahead of plaintiff, with both of them traveling to the right of the white fog line in a “bike lane.” The husband further testified that plaintiffs were descending a hill when he saw the vehicle moving in the driveway approximately 15 feet ahead of them, and that the vehicle moved past the end of the driveway approximately two feet into the “bike lane.” He also testified that when he first saw the vehicle, he yelled to the driver as loud as he could to alert the driver to their presence. He then veered to the left for fear of being struck by the vehicle, and plaintiff’s bicycle struck his bicycle

The vehicle did not make contact with either rider. This fact was sufficient for the trial court to dismiss the case finding no negligence because there was no contact. The trial court found the sole cause of the accident was the “uncontrolled operation of a bicycle ridden by the husband.” (?)

The appellate court found otherwise and reversed.

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

The appellate court held that the defendant did not prove they were not negligent or not the proximate cause of the accident.

Specifically, defendants’ submissions failed to eliminate all questions of fact whether the driver was negligent in encroaching onto the shoulder of the road, thereby blocking the pathway of the oncoming bicycles, or in operating the vehicle as it approached the road from the driveway that was partially obscured by landscaping.

The trial court also found that the husband riding the bicycle was the sole proximate cause of the accident. “Defendants therefore also failed to establish as a matter of law that the husband’s operation of his bicycle was the sole proximate cause of the accident.” Meaning that the only reason for the accident was the way the husband rode his bicycle which is how the lower court seemed to have looked at this case.

The appellate court saw the issues differently.

We conclude that there are questions of fact whether the driver was driving in a reasonable manner and whether the driver’s actions set off a chain of events that caused the husband to take action in evading the vehicle, which led to the collision between the plaintiffs’ bicycles.

The court also dismissed the defense of assumption of the risk, which is a great benefit if you are a cyclist. “Finally, we conclude that “assumption of the risk does not apply to the fact pattern in this appeal, which does not fit comfortably within the parameters of the doctrine“”

If not, in every bicycle accident, the driver would have the opportunity to say he was not at fault because the cyclists assumed the risk of riding a bicycle.

So Now What?

This is a case where I support the plaintiff. I’m also a cyclist which should be disclosed. However, how often have you been in a situation where you thought you have the choice of two evils? I can hit the other car which is causing the accident or hit the innocent car, cyclists, or pedestrian.

If you are the real cause of the accident, even though your car was hit, you may still be sued for the accident for any injuries.

Here if a car swerves or bakes suddenly taking out the entire pace line, every injured cyclist can sue the driver for causing the accident.

clip_image002What do you think? Leave a comment.

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Stone v Neustradter, 129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450

Stone v Neustradter, 129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450

[***1] Carol M. Stone and Roger E. Stone, Plaintiffs-Appellants, v Jesse D. Neustradter and Craig E. Brittin, Defendants-Respondents.

626 CA 14-02028

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450

June 19, 2015, Decided

June 19, 2015, Entered

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

CORE TERMS: bicycle, driver, driveway, proximate cause, bicycling, matter of law, questions of fact, approached, collided, yelled, struck, bike, lane, feet, looked

COUNSEL: [**1] SMITH, MINER, O’SHEA & SMITH, LLP, BUFFALO (PHILIP J. O’SHEA, JR., OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

TIFFANY L. D’ANGELO, ROCHESTER, FOR DEFENDANTS-RESPONDENTS.

JUDGES: PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.

OPINION

[*1616] Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered January 14, 2014. The order granted the motion of defendants for summary judgment and dismissed the complaint.

[EDITOR’S NOTE: This document reflects the format of the Official New York Appellate Division Reports.] It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Carol M. Stone (plaintiff) when her bicycle collided with the bicycle of her husband, Roger E. Stone (husband), after he took evasive action to avoid a vehicle driven by defendant Jesse D. Neustradter (driver) and owned by defendant Craig E. Brittin (owner). From the driveway of the owner’s residence, the driver approached the road on which plaintiffs were bicycling and stopped. He looked right, then looked left, and to his left he observed the bicycles colliding. It is undisputed that the vehicle did not make contact with either [**2] of the plaintiffs or their bicycles. Following discovery, defendants moved for summary judgment dismissing the complaint on the grounds that the driver was not negligent, the sole proximate cause of the accident was the “uncontrolled” operation of the bicycle ridden by the husband, and plaintiff assumed the risk of bicycling.

We agree with plaintiffs that Supreme Court erred in granting the motion. We conclude that defendants failed to meet their burden of establishing as a matter of law that the driver was not negligent or that his actions were not a proximate cause of the accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595). Specifically, defendants’ submissions failed to eliminate all questions of fact whether the driver was negligent in encroaching onto the shoulder of the road, thereby blocking the pathway of the oncoming bicycles, or in operating the vehicle as it approached the road from the driveway that was partially obscured by landscaping. Defendants therefore also failed to establish as a matter of law that the husband’s operation of his bicycle was the sole proximate cause of the accident. Defendants’ submissions included the deposition testimony of the husband, who testified that he was bicycling [**3] just ahead of plaintiff, with both of them traveling to the right of the white fog line in a “bike lane.” The husband further testified that plaintiffs were descending a hill [*1617] when he saw the vehicle moving in the driveway approximately 15 feet ahead of them, and that the vehicle moved past the end of the driveway approximately two feet into the “bike lane.” He also testified that when he first saw the vehicle, he yelled to the driver as loud as he could to alert the driver to their presence. He then veered to the left for fear of being struck by the vehicle, and plaintiff’s bicycle struck his bicycle. After the bicycles collided, he yelled at the driver and occupants of the vehicle for “barreling out of [the] driveway” without looking. We conclude that there are questions of fact whether the driver was driving in a reasonable manner and whether the driver’s actions set off a chain of [***2] events that caused the husband to take action in evading the vehicle, which led to the collision between the plaintiffs’ bicycles (see Sheffer v Critoph, 13 AD3d 1185, 1186, 787 N.Y.S.2d 584; see generally Tutrani v County of Suffolk, 10 NY3d 906, 907, 891 N.E.2d 726, 861 N.Y.S.2d 610). We agree with plaintiffs that the lack of contact between a bicycle and the vehicle would not preclude a factual finding that the driver was negligent [**4] in his operation of the vehicle and that any such negligence proximately caused the accident (see Tutrani, 10 NY3d at 907).

Finally, we conclude that “assumption of the risk does not apply to the fact pattern in this appeal, which does not fit comfortably within the parameters of the doctrine” (Custodi v Town of Amherst, 20 NY3d 83, 89, 980 N.E.2d 933, 957 N.Y.S.2d 268).

Entered: June 19, 2015