Words and Phrases Defined in an Articles

The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.

This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.

Term or Phrase

State

Article that Defines the Term or Phrase

Adhesion Agreement Colorado Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.
Admiralty Law Nevada Admiralty law did not stop a release from barring a claim for negligence for a parasailing injury.
Agency New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Amicus Curiae Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
Ambiguity Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Apparent Authority New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Pennsylvania Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company
Assumption of Risk Assumption of the Risk    http://rec-law.us/wMtiET
Assumption of Risk — Checklist
California Assumption of the Risk to be a bar to a claim the defendant must now owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.
Hawaii The risk of hiking over lava fields is an obvious risk; falling while hiking is also a possibility….so is suing when you do both…but you won’t win
Massachusetts Duty of care for a Massachusetts campground is to warn of dangerous conditions.
New York If you have a manual, you have to follow it, if you have rules you have to follow them, if you have procedures, you have to follow them or you lose in court.

Skier assumes the risk on a run he had never skied before because his prior experience.

Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Pennsylvania PA court upholds release in bicycle race.
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
South Carolina Assumption of the risk is used to defeat a claim for injuries on a ropes course.
Express Assumption of risk California BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.
Delaware If you agree to the rules you have to follow the rules
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Implied Assumption of the risk Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Primary Assumption of Risk Delaware If you agree to the rules you have to follow the rules
Minnesota Assumption of Risk used to defend against claim for injury from snow tubing in Minnesota
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

BSA (Cub Scout) volunteer not liable for injuries to cub because cub assumed the risk of his injuries. BSA & Council not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Secondary
Assumption of Risk
Arkansas Proof of negligence requires more than an accident and injuries. A Spectator at a rodeo needed proof of an improperly maintained gate.
California Most references in case law to assumption of the risk are to this California decision
Ohio Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.
Business Invitee Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Causation Indiana 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.
Certiorari Colorado Colorado Supreme Court rules that an inbounds Avalanche is an inherent risk assumed by skiers based upon the Colorado Skier Safety Act.
Common Carrier California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
Contracts
Meeting of the Minds North Carolina When is a case settled? When all parties (and maybe their attorneys) agree it is settled
Consideration What is a Release?
Concurring Opinion Utah The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality
Contribution Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Declaratory Judgment New Hampshire What happens if you fail to follow the requirements of your insurance policy and do not get a release signed? In New Hampshire you have no coverage.
Derivative Claim Sign in sheet language at Michigan health club was not sufficient to create a release.
Duty of Care California Balloon ride in California is not a common carrier, and the release signed by the plaintiff bars the plaintiff’s claims even though she did not read or speak English
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
South Carolina South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.
Washington Summer Camp, Zip line injury and confusing legal analysis in Washington

Good News ASI was dismissed from the lawsuit

Essential Public Services Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Expert Witness Connecticut Summer camp being sued for injury from falling off horse wins lawsuit because the plaintiff failed to find an expert to prove their case.
Failure to Warn New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Foreseeability Colorado Be Afraid, be very afraid of pre-printed forms for your recreation business
Illinois When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
New Jersey Is a negligent act to open a car door into a bike lane when a cyclists is in the lane in New Jersey
Ohio Liability of race organizer for State Park Employees?
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the acts of the plaintiff.
Idaho Federal Court in Idaho holds camp not liable for assault on third party by runaway minors.
Forum non conveniens Kansas If you fall down in a foreign country, and you have paid money to be there, you probably have to sue there.
Fraud Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality
Fraudulent Inducement New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Fraudulent Misrepresentation Georgia Lying in a release can get your release thrown out by the court.
California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Gross Negligence California Release saves riding school, even after defendant tried to show plaintiff how to win the case.
Idaho Statements made to keep a sold trip going come back to haunt defendant after whitewater rafting death.
Maryland Sky Diving Release defeats claim by Naval Academy studenthttp://rec-law.us/1tQhWNN
Massachusetts Colleges, Officials, and a Ski Area are all defendants in this case.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Michigan Good Release stops lawsuit against Michigan bicycle renter based on marginal acts of bicycle renter

Allowing climber to climb with harness on backwards on health club climbing wall enough for court to accept gross negligence claim and invalidate release.

Nebraska In Nebraska a release can defeat claims for gross negligence for health club injury
New Hampshire In this mountain biking case, fighting each claim pays off.
New Jersey New Jersey upholds release for injury in faulty bike at fitness club
New York New York judge uses NY law to throw out claim for gross negligence because the facts did not support the claim
Pennsylvania Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania
Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.
Tennessee 75 Ft waterfall, middle of the night, no lights and a BAC of .18% results in two fatalities and one lawsuit. However, facts that created fatalities were the defense
Texas Suit against a city for construction retaining wall in City Park identifies defenses to be employed to protect park patrons.
Utah Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident.

The safety precautions undertaken by the defendant in this mountain bike race were sufficient to beat the plaintiff’s claims of gross negligence in this Utah mountain bike fatality

Inherently Dangerous Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Inherent Risks California This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).
Interlocutory Appeal Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Utah Utah courts like giving money to injured kids
Invitee Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Joint Venture Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Judgment Notwithstanding the Verdict (JNOV or J.N.O.V.) Maryland Skiing collision in Utah were the collision was caused by one skier falling down in front of the other skier
Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Lex loci contractus Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Long Arm Statute Requirements New York To sue a Vermont ski area there must be more than a web presence to sue in New York
Material Breach of a Contract Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Motion to Dismiss Colorado Colorado Premises Liability act eliminated common law claims of negligence as well as CO Ski Area Safety Act claims against a landowner.
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligence Georgia Georgia court finds no requirement for employee to interview when higher trained first aid providers are present
Idaho Idaho Supreme Court holds is no relationship between signs posted on the side of the trampoline park in a duty owed to the injured plaintiff
Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Indiana Indiana decision upholds release signed by mother for claims of an injured daughter for the inherent risks of softball.

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.

Louisiana Louisiana State University loses climbing wall case because or climbing wall manual and state law.
Maryland Plaintiff failed to prove that her injuries were due to the construction of the water park slide and she also assumed the risk.
Massachusetts Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release
Mississippi Mississippi decision requires advance planning and knowledge of traveling in a foreign country before taking minors there.
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Negligence (Collateral) Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
Negligence Per Se Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Florida Motion for Summary Judgement failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.
South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Illinois (does not exist) When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Negligent Misrepresentation New York The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiff
No Duty Rule Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Open and Obvious Michigan The assumption of risk defense is still available when the claim is based on a condition of the land. This defense is called the open and obvious doctrine.
New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
Rhode Island
Passive-Retailer Doctrine Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Premises Liability Colorado Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability
Mississippi Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.
Prima facie New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Prior Material Breach Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Product Liability Georgia Federal Court finds that assumption of the risk is a valid defense in a head injury case against a bicycle helmet manufacturer.
Tennessee Pacific Cycle not liable for alleged defective skewer sold to plaintiff by Wal-Mart
Utah Retailers in a minority of states may have a defense to product liability claims when they have nothing to do with the manufacture of the product
Negligent Product Liability Illinois Plaintiff fails to prove a product liability claim because she can’t prove what tube was the result of her injury
Public Policy California Defendant tells plaintiff the release has no value and still wins lawsuit, but only because the plaintiff was an attorney
Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
Oregon Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Pennsylvania Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.
New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.

Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?

Tennessee Tennessee still does not allow a parent to sign away a minor’s right to sue, but might enforce a jurisdiction and venue clause, maybe an arbitration clause
Punitive Damages New York “Marketing makes promises Risk Management has to pay for” in this case the marketing eliminated the protection afforded by the warning labels
Rescue Doctrine South Dakota Great analysis of the “Rescue Doctrine” in a ballooning case from South Dakota
Recklessness Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
New Jersey New Jersey does not support fee shifting provisions (indemnification clauses) in releases in a sky diving case.
Ohio BSA (Cub Scout) volunteer was not liable for injuries to cub because cub assumed the risk of his injuries. The BSA & Council were not liable because volunteer was not an agent.

Ohio Appellate decision defines assumption of the risk under Ohio law and looks at whether spectators assume the risk.

Pennsylvania Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.
Release Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Colorado 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality

Colorado Federal District Court judge references a ski area lift ticket in support of granting the ski area’s motion for summary judgment and dismissing the lawsuit.

New Hampshire New Hampshire court upholds release and defines the steps under NH law to review a release.
Oklahoma Oklahoma Federal Court opinion: the OK Supreme Court would void a release signed by the parent for a minor.
New Hampshire Did a Federal District Court in New Hampshire allow a release to bar a minor’s claims?
Pennsylvania Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Neither a release nor the Pennsylvania Equine Liability Act protects a stable for injuries when the stirrup broke.

Texas University climbing wall release along with Texas Recreational Use Act and Texas Tort Claims Act defeat injured climber’s lawsuit
Release Fair Notice Requirement under Texas law Texas Federal Court in Texas upholds clause in release requiring plaintiff to pay defendants costs of defending against plaintiff’s claims.
Remittitur Missouri Here is another reason to write releases carefully. Release used the term inherent to describe the risks which the court concluded made the risk inherently dangerous and voids the release.
res ipsa loquitur Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Respondeat superior Missouri US Army and BSA not liable for injured kids on Army base. No control by the BSA and recreational use defense by US Army.
New Jersey The use of the PGA name was not enough to tire the PGA to a golf camp where they had no relationship or control. As such, they were dismissed from the suit because they had no duty to the injured minor.
Restatement (Second) of Torts Pennsylvania The harder a court works to justify its decision the more suspect the reasoning.
Standard Colorado
California
Words: You cannot change a legal definition
New York New York Decision explains the doctrine of Primary Assumption of the Risk for cycling
Ohio In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night
Rhode Island Rhode Island, applying New Hampshire law states a skier assumes the risk of a collision.
Standard of Review Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Sudden Emergency Doctrine New York Eighteen year old girl knocks speeding cyclists over to protect children; Sudden Emergency Doctrine stops suit
Summary Judgment Connecticut Connecticut court rejects motion for summary judgment because plaintiff claimed he did not have enough time to read the release before he signed it
Pennsylvania Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute
Superseding or Intervening Causation Indiana 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.
Tort Louisiana Louisiana court holds a tubing operation is not liable for drowning or failure to properly perform CPR
Unconscionable Delaware Delaware Supreme Court decision quickly determines a health club release is not void because of public policy issues and is clear and unequivocal
United States Constitution Fourteenth Amendment Buy something online and you may not have any recourse if it breaks or you are hurt
Willful, Wanton or Reckless Illinois When an organization makes rules and regulations that a subsidiary organization is supposed to obey, and then fails to follow, both organizations are liable to any plaintiff injured due to the failure to follow or enforce the organizational rules, policies, regulations or standards.
Ohio Ohio Appellate decision upholds the use of a release for a minor for a commercial activity.
Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.
Minnesota Plaintiff argues under Minnesota law the language on the back of the season pass created an ambiguity which should void the season pass release for a ski area.
Missouri Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort
Nebraska Fees are charged, recreation is happening, but can the recreational use act still protect a claim, yes, if the fees are not for the recreation
Washington Dive Buddy (co-participant) not liable for death of the diver because the cause of death was too distant from the cause of the death.
Wyoming Rental agreement release was written well enough it barred claims for injuries on the mountain at Jackson Hole Mountain Resort in Wyoming
Wrongful Death Ohio Poorly written release on a sign in sheet barely passes protecting Ohio defendant swimming area from suit.

Last Updated April 24, 2018


Georgia Recreational Use Statute

 OFFICIAL CODE OF GEORGIA
ANNOTATED

 TITLE 51.  TORTS

 CHAPTER 3.  LIABILITY OF OWNERS AND OCCUPIERS OF LAND

 ARTICLE 2.  OWNERS OF PROPERTY USED FOR RECREATIONAL
PURPOSES

 § 51-3-20.  Purpose of article

§ 51-3-21.  Definitions

§ 51-3-22.  Duty of owner of land to those using same for recreation generally

§ 51-3-23.  Effect of invitation or permission to use land for recreation

§ 51-3-24.  Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation

§ 51-3-25.  Certain liability not limited

§ 51-3-26.  Construction of article

§ 51-3-20.  Purpose of article

The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.

§ 51-3-21.  Definitions

As used in this article, the term:

(1) “Charge” means the admission price or fee asked in return for invitation or permission to enter or go upon the land.

(2) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty. 

(3) “Owner” means the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.

(4) “Recreational purpose” includes, but is not limited to, any of the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, aviation activities, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites. 

§ 51-3-22. Duty of owner of land to those using same for recreation generally 

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.

§ 51-3-23.  Effect of invitation or permission to use land for recreation 

Except as specifically recognized by or provided in Code Section 51-3-25, an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:

(1) Extend any assurance that the premises are safe for any purpose;

(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or

(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

§ 51-3-24.  Applicability of Code Sections 51-3-22 and 51-3-23 to owner of land leased to state or subdivision for recreation 

Unless otherwise agreed in writing, Code Sections 51-3-22 and 51-3-23 shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.

§ 51-3-25.  Certain liability not limited 

Nothing in this article limits in any way any liability which otherwise exists:

(1) For willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or 

(2) For injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this Code section. 

§ 51-3-26.  Construction of article 

Nothing in this article shall be construed to: 

(1) Create a duty of care or ground of liability for injury to persons or property; or

(2) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this article to exercise care in his use of the land and in his activities thereon or from the legal consequences of failure to employ such
care.
 

 


“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.

 


Mississippi retailer not liable for injury to a child who rode a bicycle through aisles he found on the store floor.

Attempts by the plaintiff to re-characterize stands and racks did not get past the judge. However, in many cases, the way a plaintiff casts a product can later define how the jury sees the case.

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

State: Mississippi, Court of Appeals of Mississippi

Plaintiff: Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser

Defendant: Wal-Mart Stores, Inc.

Plaintiff Claims: Premises Liability

Defendant Defenses: No duty

Holding: For the Defendant Retailer

Year: 2015

This is a screwy little case, but worth the effort. A family, Step-Father, mother and two sons went into a Wal-Mart to buy a basketball. While there, the two sons walked over to the bicycle aisle and proceeded to ride two bicycles they found through the aisles.

One brother, in attempting to put a bicycle back in the rack, slowed down. The other brother was not used to hand breaks, maneuvered around the brother riding into a shelf where he suffered a cut on his leg.

They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches.

Of note was the statement that the employee assigned to the area was absent and there were no signs posted prohibiting the use of the bicycles.” (So bars now need to put up signs no drinking from the tap without paying for the product first?). The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.”

The defendant was ten at the time of the injury so whether or not signs were posted probably would not have made a difference. And it seems that allowing children to ride bikes through the aisles at Wal-Mart in Mississippi is a common practice, which sort of blows my mind.

The injured child’s mother filed a lawsuit on his behalf, since he was a minor, and sued Wal-Mart based on a premise’s liability theory. Wal-Mart filed a motion for summary judgment stating there was no genuine issue of material fact showing that there was a dangerous condition that Wal-Mart should have warned about.

The motion was granted, and the plaintiff appealed the decision.

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

The court first looked at the premises’ liability law that the plaintiff claimed had been breached by Wal-Mart. To prove his case the plaintiff must show that he was an invitee, the duty owed to him based on his status and whether Wal-Mart breached that duty.

Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured. 

Because the plaintiff was there with his parents to purchase a basketball, he was defined as an invitee. As such, the duty of a land owner (or retailer) was to keep the premises reasonably safe and when not reasonably safe, to warn of the hidden dangers. If the peril were in plain and open view, there is no duty to warn of them.

To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].”

Is a bicycle on display at a retailer a dangerous condition? The plaintiff argued the bicycle should have been locked up so the plaintiff could not ride it. The bicycle was not in a rack at the time the plaintiff found the bike.

He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

The plaintiff then characterized the rack that the bike should have been in as a “safety rack.” However, the court caught on to that maneuver and reviewed the operation of the rack and the manufacturer’s description and found the rack was designed only to hold bikes, not to prevent them from being moved.

Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp

The plaintiff argued that since the bikes would be difficult to remove from the rack, an employee would need to be there to make sure the bikes were removed properly and only when allowed.

However, the entire argument failed. No employee was stationed at the rack to guard against removing bikes. Other children rode bikes in the aisle without incidence, which indicated there was no real danger and no evidence of a standard was presented indicating a requirement to lock up bikes on the show floor.

Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to.

The plaintiff then argued a higher duty was owed to the plaintiff because he was a minor. However, the duty owed under a premise’s liability act does not change due to the age of the invitee. The plaintiff also knew how to ride a bicycle and learned at the age of five. The plaintiff had also been involved in numerous bicycle accidents prior to the one that injured him at the retailers’ premises.

An unlocked bicycle was found not to present a dangerous condition such that a warning had to be posted by the retailer about the risk to the consumers.

So Now What?

The first issue which was handled quickly by the court was the attempt by the plaintiff to characterize something as different than it actually was. By calling the bike rack a safety rack the plaintiff could place in the juries mind a requirement that did not exist. It is important that these issues not be allowed to explode and create liability just because thclip_image002_thumb.jpge plaintiff miss-labels part of the case.

Another issue is the fact that parents allow their kids to ride bicycles through the aisles of stores, and the retailer does not put a stop to it. What if the plaintiff had hit another patron rather than a shelf?

As always, the issue of putting warning signs up so people who can’t read, can be protected always makes me wonder. Warning if you are unable to read this sign, please find someone to read it to you. Seriously the entire world is going to be nothing but signs if this continues.

Thankfully, the retailer was not liable for the actions of an inattentive parent for the injuries of their child riding a bike down a store aisle.

What do you think? Leave a comment.

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Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

Wilson v. Wal-Mart Stores, Inc., 161 So. 3d 1128; 2015 Miss. App. LEXIS 216

Seth Wilson, by and Through His Mother and Next Friend, Suzette Wilson Purser, appellant v. Wal-Mart Stores, Inc., Appellee

NO. 2014-CA-00589-COA

Court of Appeals of Mississippi

161 So. 3d 1128; 2015 Miss. App. LEXIS 216

April 21, 2015, Decided

COUNSEL: FOR APPELLANT: D. BRIGGS SMITH JR.

FOR APPELLEE: THOMAS M. LOUIS, LEO JOSEPH CARMODY JR.

JUDGES: BEFORE LEE, C.J., BARNES AND MAXWELL, JJ. IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.

OPINION BY: LEE

OPINION

[*1129] NATURE OF THE CASE: CIVIL – PERSONAL INJURY

LEE, C.J., FOR THE COURT:

P1. In this premises-liability case, we must determine whether summary judgment was appropriately granted in favor of Wal-Mart Stores Inc. We find summary judgment was proper; thus, we affirm.

FACTS AND PROCEDURAL HISTORY

P2. On April 29, 2012, ten-year-old Seth Wilson, his brother, Wyatt Purser, and his stepfather, Jim Purser, went to a Wal-Mart [*1130] store in Batesville, Mississippi, to purchase a basketball. While Jim was paying for the basketball at a nearby register, Seth and his brother started looking at the bicycles. They both got on bicycles that were on the bicycle rack, and started riding up and down the aisles nearby. The bicycle Seth rode was on the ground when he found [**2] it, with its front wheel pushed under the rack and its back wheel in the aisle. Seth was following Wyatt on his bicycle when Wyatt slowed down to put the bicycle he was riding away. Seth was forced to go around him because he was “going real fast” and “[could not] figure out how to stop.” He tried to brake using the pedals, but the bicycle only had handbrakes. Unable to stop, Seth ran into a wall and cut his leg on a shelf. The cut was deep and required stitches. The employee assigned to the department was outside at the time of the accident, and no signs were posted prohibiting the use of the bicycles or otherwise warning of any danger.

P3. Suzette Purser, Seth’s mother, filed suit on his behalf on September 14, 2012, alleging negligence on the part of Wal-Mart in failing to keep the premises reasonably safe and warn of danger. After discovery was completed, Wal-Mart filed a motion for summary judgment. Seth filed a response, and Wal-Mart replied. After a hearing, the trial court granted Wal-Mart’s motion, finding that no genuine issue of material fact existed because Seth failed to show the existence of a dangerous condition. Seth filed a motion to reconsider, which was denied. Seth [**3] now appeals asserting the trial court erred in granting Wal-Mart’s motion for summary judgment.

STANDARD OF REVIEW

P4. [HN1] In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it — admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So. 2d 977, 979 (¶7) (Miss. 2001) (citation omitted). [HN2] The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that “[t]he movant bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88 (¶11) (Miss. 2013) (citation omitted). The supreme court further stated that “[t]he movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶11) (citations omitted). The supreme court again clarified that “while [d]efendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established [**4] facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as [he] would carry the burden of production at trial.” Id. at 89 (¶13).

DISCUSSION

P5. [HN3] To determine whether Wal-Mart is entitled to summary judgment on Seth’s premises-liability claim, this Court must (1) determine the status of the injured person as either an invitee, licensee, or trespasser, (2) assess, based on the injured party’s status, what duty the landowner or business operator owed to the injured party, and (3) determine whether the landowner or business operator breached the duty owed to the injured [*1131] party. Titus v. Williams, 844 So. 2d 459, 467 (¶28) (Miss. 2003).

P6. It is undisputed that Seth was a business invitee. [HN4] “A business owner/operator owes to invitees the duty to keep the premises reasonably safe, and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view.” Rod v. Home Depot USA Inc., 931 So. 2d 692, 694 (¶10) (Miss. Ct. App. 2006) (citation and internal quotation marks omitted). To succeed in a premises-liability action, Seth must prove one of the following: “(1) a negligent act by [Wal-Mart] caused [his] injury; or, (2) that [Wal-Mart] had actual knowledge of a dangerous condition, but failed to warn [him] [**5] of the danger; or, (3) the dangerous condition remained long enough to impute constructive knowledge to [Wal-Mart].” Byrne v. Wal-Mart Stores Inc., 877 So. 2d 462, 465 (¶5) (Miss. Ct. App. 2003) (citation omitted). A business owner, however, is not an insurer of an invitee’s injuries. Id. at (¶6).

P7. Whether Wal-Mart breached its duty to keep the premises reasonably safe or otherwise warn of a hidden danger necessarily depends on whether a dangerous condition existed. Seth argues that whether an unlocked or readily available bicycle on the sales floor constituted a dangerous condition was a genuine issue of material fact that should have been submitted to a jury. To avoid summary judgment, however, Seth must produce sufficient evidence of the essential elements of a claim of negligence – duty, breach, causation, and damages.

P8. Seth contends that leaving unlocked or readily accessible bicycles on the sales floor created a dangerous condition. He argues that (1) Wal-Mart’s possession of a rack on which to clamp the bicycles, (2) the assignment of an employee to the toy department, and (3) evidence of other children on bicycles in the same aisle at the same Wal-Mart show that unlocked or readily accessible bicycles created a dangerous condition, and that Wal-Mart [**6] knew about it and failed to warn its patrons. He cites to no authority to support his position, and nothing in the record supports these allegations.

P9. Seth refers to the rack where the bicycles could be clamped as a safety rack, but there is nothing in the record to indicate that the purpose for the rack was to protect its patrons from the alleged danger posed by unlocked or readily accessible bicycles. The record contains installation instructions for the rack, which were prepared by VIDIR Machine Inc., a vertical storage company, and refers to the rack as a carrier or bike-merchandising system only. The rack does not contain a locking mechanism, and holds bicycles in place utilizing a tire clamp. While the bicycles are still accessible to patrons, Seth argues that the rack was designed to make it difficult for patrons to remove the bicycle from the rack, prompting a need for employee assistance, but fails to offer sufficient evidence of this assertion.

P10. Additionally, there is nothing in the record to indicate the assignment of an employee to the toy department was for the purpose of guarding against any known danger; and evidence that other children rode bicycles in the same [**7] aisle in the same Wal-Mart without incident does not, in and of itself, tend to show that unlocked or readily accessible bicycles pose a danger. Seth provided no evidence of the industry’s standards, no expert reports, and no evidence of Wal-Mart’s policy regarding who may remove the bicycles from the rack and whether its employees were required to return the bicycles to the rack immediately after each use. Because Wilson failed to produce sufficient evidence that unlocked or readily accessible [*1132] bicycles on the sales floor created a dangerous condition, this issue is without merit.

P11. Seth also argues that the trial court erred in finding that Seth’s age was immaterial. This appears to be an attack on the applicability of Orr v. Academy Louisiana Co., 157 So. 3d 44, 2013 WL 1809878 (La. Ct. App. 2013), an unpublished opinion the trial court cited in support of its conclusion that an unlocked or readily accessible bicycle does not constitute a dangerous condition. In Orr, a woman was injured when she was struck by an adult male riding a bicycle in Academy Sports and Outdoors. 157 So. 3d 44, Id. at *1.

P12. It is not disputed that Seth was an invitee at the time of his injury, and he acknowledges that the duty owed him was not in any way heightened due to his status as a minor. What Seth [**8] appears to be arguing is that the trial court incorrectly considered evidence of contributory negligence in determining whether a dangerous condition existed. Seth had learned how to ride a bicycle by the age of five and had been involved in other bicycle accidents prior to the one at Wal-Mart. Again, Seth’s argument necessarily depends on whether an unlocked or readily available bicycle constitutes a dangerous condition. If an unlocked or readily accessible bicycle does not constitute a dangerous condition, it does not matter whether a person of Seth’s age, experience, and intelligence could have perceived the danger because the danger did not exist. Because Seth failed to show how an unlocked or readily available bicycle constituted a dangerous condition, this issue is without merit.

P13. THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.


Sometimes you get screwed; here Petzl was shafted by the court.

In this product liability case, improper use of a climbing harness at a climbing wall led to a lawsuit. The injured climber was climbing at the gym and helped by an untrained employee. In this case, when a judge wants you to pay, you are going to suffer.

In this case, a manufacturer (Petzl) sold climbing harnesses to a climbing wall builder (Sport Rock International, Inc.) who sold a harness to a New York- climbing gym. A gym employee attached a beginner climber to the harness using a gear loop rather than the normal tie in points. The employee had little training and knew not to tie into the gear loop but accidentally did so. The beginning climber fell thirty feet when the gear loop ripped and was injured.

Anaya v Town Sports International, Inc., et al., 2007 NY Slip Op 7875; 2007 N.Y. App. Div. LEXIS 10819

Plaintiff: Joseph Anaya

Defendant: Town Sports International, Inc., et al., Sport Rock International, Inc., et al. (et al in this case means and others, including Petzl America, Inc.)

Plaintiff Claims: negligence and strict products liability (defectively designed and insufficient warnings)

Defendant Defenses:

Holding: mostly for the plaintiff

The plaintiff sued under theories of negligence and strict product’s liability. The strict product’s liability claims were for defective design of the harness and insufficient warnings on the harness. The warning issue was specifically for failure to warn of where the correct tie in point on the harness was located.

The climbing wall was also sued for negligence and product liability. The climbing wall settled with the injured plaintiff and was not part of this lawsuit. In this case, the climbing wall was a retailer because the harness, although not technically sold to a consumer, was moved into the consumer market by the climbing gym. In a product liability lawsuit, all entities in the chain of sale from the manufacturer to the consumer are brought into court.

The climbing wall and manufacturer filed separate motions for summary judgment, and the trial court granted the motions. The plaintiff appealed, and the appellate court reversed the decision of the trial court and sent the case back down for trial.

Summary of the case

To prove a case for product liability based on defective design in New York the plaintiff must prove “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury….” This argument is similar to the proximate causation argument for a simple negligence claim; however, it is reversed. The plaintiff must prove he was injured first and that the cause of his injury was substantially caused by the design flaws of the product.

With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner”

In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design”

This test is a little more reversed than you first might think about it. The reasonable man test is not that of the manufacturer but of someone in the community with the average knowledge and experience of a person in the community. For those things, we all know and understand such as driving, eating at a restaurant or going to a movie, the test makes sense. We understand how everything works and what we believe is best because we have experienced it.

However, for those activities or actions only practiced or experienced by a few, that test creates an education problem. You must educate the judge and the jury and convince them that the standard you are arguing is reasonable. This is difficult when they may have no idea what you are talking about.

This is a no-win test for the harness manufacturer because attempting to argue that more warnings would either defeat the use of the harness, defeat the ability to use the harness, or cost too much to create and attach to the harness is simply impossible to do. That means the test is comparing the cost of adding additional labels that warn of the risk of tying into a gear loop versus the potential for injury. The potential for injury is almost absolute, thus the manufacturer is going to fail that test 99 times out of 100 if not all the time.

For rock climbing, it is impossible to meet the test in most situations because so few people understand rock climbing. They have no experience in tying into a harness and climbing a wall. To many the whole concept is alien and scary.

While a few people who are not climbers may understand how a harness works, it is likely that knowledge will be based on work harnesses, which have no gear loops and can only be used one way. This difference alone leads to confusion and misunderstanding. If the government, OSHA, does not allow or require gear loops why did the climbing wall manufacturer have them on its harness. The harness is only seen as safety item, not as a way to haul gear and a chalk bag….as well as catch a fall.

The court made this conclusion.

Since the harness was undoubtedly meant to bear the weight of a climber, it was reasonably foreseeable that a climber might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight.

Simple statement for the court to make. The harness is meant to catch the wear in a fall; therefore, all parts of the harness should be able to catch the wearer in a fall.

The manufacturers of climbing harnesses make the gear loops appear flimsy so that a climber would know not to tie into a gear loop. Whether this is an effective way to warn people that a gear loop is not meant to catch a fall was determined by the court to be a question of law to be determined by the jury. Consequently, the court had issues and did not reverse the trial court and sending the case back for trial.

The failure to warn argument was then reviewed by the court. The test of failure to warn is “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known.”

Petzl warned about the gear loop in the manual. There was also a small label with a skull and crossbones on it, which directed the user to read the manual. The flaw in this situation is the harness had been sold to a climbing wall where it would be used by dozens of climbers, none the owner of the harness and none having access to the manual.

An expert witness for the plaintiff testified that the skull and crossbones label was insufficient to give rise to notice to the consumer of the risk of tying into the gear loop. Here again, the question of fact was one that had to be determined by a jury.

What makes this case so difficult to accept is, the gear loops and labels used by Petzl are standard in the industry. We, in the industry are used to the labels and understand them. Again, the test is not of someone in the industry but of a reasonable man walking down any street, in any town USA.

The defendants then argued that the employee of the climbing gym was an intervening person between the defendant’s acts (making and selling the harness) and the injury. However, the judge rejected this argument because the intervening act cannot be a defense if it is foreseeable that someone would tie into a gear loop.

The manufacturer admitted to knowing of other cases in which people tied into the gear loop of harnesses. This knowledge then eliminated the defense that the injury was unreasonably foreseeable. This test looks at whether or not the average person in the community could guess that a person would tie in incorrectly and whether this knowledge should have been known by the manufacture. Since the manufacturer knew of similar situations then it was foreseeable.

One of the issues that jumps out of this case in reading the decision, is the court wanted to use language that assisted the plaintiff or at least was incorrect. A perfect example was calling the belay rope the safety line.

So Now What?

If you are a manufacturer, you must make sure that your warnings are sufficient that people not associated with the industry can understand their meaning. Here the appellate court had probably never worn a harness and could not understand or see the risk the warning label was attempting to identify.

If believe your market is big enough, then selling a harness to beginners (climbing gyms) that is simple and requires no warning labels might work. With no opportunity to tie into anywhere but the one tie point you eliminate this need. However, you have also eliminated part of the market that wants to get a beginning harness that can grow as their experience does. I.e. a harness that has a gear loop.

Another way would be to eliminate the warnings found in the manual and permanently attach them to the harness. A laminated or plastic card could hang from the chalk bag loop and be obvious to any climber. Beginners are not going to worry about 10 grams of weight the warning card would add to the harness. Sell the harness only to climbing gyms or rope’s courses, etc. and supply a dozen cards with each harness. Require the purchaser to put a new card on the harness anytime a harness is found without one.

Another possibility is to create a more direct relationship between the manufacturer and the user. Not the consumer but climbing walls, zip lines, rope’s courses, and guide services, etc. This relationship, if contractual (and in writing) can say that for a discount, the parties will indemnify each other, follow the rules and consider the relationship a commercial transaction, not that of a consumer transaction.

Even though Petzl had the requisite warning label on its harness, and even though it is common knowledge among anyone with any experience as a climber tying into a gear loop is not safe (as the climbing gym employee did), Petzlbecame a party to the lawsuit once an appellate court decided that the warning labels on the harness, which have been used in several other industries, were not adequate to keep the harness manufacture out of court.

What do you think? Leave a comment.

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Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

Joseph Anaya, Plaintiff-Appellant, v Town Sports International, Inc., et al., Defendants, Sport Rock International, Inc., et al. Defendants-Respondents. Index 101027/03

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

October 18, 2007, Decided

October 18, 2007, Entered

COUNSEL: Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.

Callan, Koster, Brady & Brennan, LLP, New York (Marc R. Wilner of counsel), for Sport Rock International, Inc., respondent.

Goldberg Segalla LLP, Mineola (Joanna M. Roberto of counsel), for Petzl America, Inc., respondent.

JUDGES: Friedman, J.P., Nardelli, Sweeny, McGuire, Malone, JJ.

OPINION

[**485] [***600] Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2006, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants Sport Rock International (Sport Rock) and Petzl America, Inc. (Petzl) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the motions denied with respect to plaintiff’s claims based on design defect and [***601] failure to warn, and otherwise affirmed, without costs.

Plaintiff sustained severe personal injuries when he fell from a height of approximately 30 feet while descending a rock climbing wall that was operated by defendant Town Sports International, Inc. of West Nyack (TSI). The accident occurred because an employee of TSI tied the safety line plaintiff was using to a non-weight bearing gear loop on the harness plaintiff was wearing; the line should have been tied to the “anchor point” of the harness. As plaintiff descended the wall the gear loop tore away from the harness, causing plaintiff’s fall. The harness was sold to TSI by Sport Rock and manufactured by Petzl.

Plaintiff asserts causes of action for, among other things, negligence and strict products liability. Plaintiff asserts that Sport Rock and Petzl are liable for his injuries because the safety harness was defectively designed and insufficient warnings were provided regarding where on the harness the safety line was supposed to be tied. Sport Rock moved for summary judgment dismissing the complaint and all other claims as asserted against it, and Petzl moved separately for similar relief. Plaintiff cross-moved for a special trial preference and to dismiss the affirmative defenses of Sport Rock and Petzl premised on [**486] the alleged absence of personal jurisdiction over those defendants. Supreme Court granted the motions of Sport Rock and Petzl, and denied plaintiff’s cross motion. Plaintiff appeals, as limited by his brief, from those portions [*2] of the order that granted the motions of Sport Rock and Petzl. 1

1 Plaintiff settled this action with TSI.

Petzl’s argument that plaintiff failed to oppose its motion before Supreme Court and that plaintiff therefore lacks standing to maintain this appeal is without merit. Plaintiff expressly opposed the motions of Sport Rock and Petzl for the reasons stated by TSI in its opposition to the motions.

[HN1] To establish a prima facie case for strict products liability based on defective design, the plaintiff must show that “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107, 450 N.E.2d 204, 463 N.Y.S.2d 398 [1983]). With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (id. at 108). In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design” (id. at 109).

Since the harness was undoubtably meant to bear the weight of a climber, it was reasonably foreseeable that a climber [***602] might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight. In fact, both these defendants admitted that novice climbers had been known to attach safety lines to gear loops and other parts of the harness. Rather than designing the gear loop to be weight bearing, or omitting it from the design, Petzl decided to make it appear flimsy in the expectation that the user would not attempt to attach a line to it. Whether this decision was reasonable in view [**487] of the questionable utility of a gear loop on a harness used for indoor rock climbing and the serious risk posed is a question for the jury (Voss, 59 NY2d at 108-109; see also Denny v Ford Motor Co., 87 NY2d 248, 662 N.E.2d 730, 639 N.Y.S.2d 250 [1995]).

Triable issues of fact also exist regarding plaintiff’s cause of action for strict products liability based on failure to warn. [HN2] “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” (Liriano v Hobart Corp., 92 NY2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 [1998]). This rule applies with equal force to distributors and retailers (see Godoy v Abamaster of Miami, 302 AD2d 57, 754 N.Y.S.2d 301 [2003]). Foreseeing the potential that harness users might tie safety lines to gear loops, Petzl warned against such conduct. This warning appeared in the manual accompanying the harness and in a technical notice. A small label on the harness contained a “skull and cross-bones” symbol and directed the user to refer to the manual and technical notice. There is expert evidence, however, that these warnings were inadequate because no warning on the harness itself specifically advised against tying a safety line to the gear loop. Thus, the sufficiency of the warnings must be determined by a jury.

Contrary to the assertions of Sport Rock and Petzl, we cannot determine as a matter of law that the conduct of TSI’s employee was a superseding act.

[HN3] Where the acts of a third person intervene between the defendant’s conduct and [*3] the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 [1980]).

Here, TSI’s employee testified that she knew the safety line was not to be tied to the gear loop. However, she did not know what purpose the gear loop served, and accidently tied the safety line to it. While it appears that this employee had minimal training on the proper use of the harness and had not read the manual or technical notice, the record does not permit a finding that the employee’s conduct was unforeseeable as a matter of law. The record is replete with evidence indicating the foreseeability of the risk that novice users of the harness (or for that matter other inexperienced persons such as the employee) might mistakenly tie safety lines to gear loops. Had the harness been [**488] designed without a gear loop or with a weight bearing gear loop, or had clearer warnings been on the harness itself, the accident may have been prevented. Accordingly, triable issues of fact exist regarding whether the alleged defective design [***603] of the harness, the alleged inadequate warnings, or both, was a substantial factor in causing plaintiff’s injuries (see id. [“Because [HN4] questions concerning what is foreseeable and what is normal may be the subject of varying inferences … these issues generally are for the fact finder to resolve”]).

Plaintiff’s remaining contentions are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2007

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Excellent opinion explaining product liability issues under Minnesota law

However this bicycle product liability case is not over.

Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559

Plaintiff: John Sanny and Diana Sanny

Defendant: Trek Bicycle Corporation

Plaintiff Claims: design defect, failure to warn, and failure to provide post-sale warnings

Defendant Defenses:

Holding: Mixed ruling

This is not a final decision in this case; in fact, I suspect this case is still proceeding to trial. This opinion is one from a motion’s hearing decided May 8, 2013 to prepare for trial. I am always hesitant to write about a case when it is still ongoing; however, the case has great information on how courts look at issues in product liability claims.

The plaintiff taught tennis and other classes at the University of Minnesota. He would drive to work, park, then take his bike out of his car and ride the rest of the way to work. To put his bike in his car, he had to remove the front wheel of his bike, which used a quick release. A quick release is a skewer that goes through the wheel axle and using a lever action tightens the wheel to the front fork. The court does an excellent job of explaining how this works showing a real understanding of the facts of the case.

A quick release mechanism, like the one used in Sanny’s bicycle, involves three major components: a bicycle fork designed for quick release use, a front wheel designed for the same, and the quick release device itself. In a bicycle equipped for a quick release tire, the front “fork blades”–the arms of the bicycle which hold the wheel–each end in an open, u-shaped “dropout.” The front wheel has a hollow axle, meaning the axle has a narrow, cylindrical hollow space running its length. The quick release device is a skewer that has an adjustable nut on one end and a lever on the other.

To connect the wheel to the bicycle, the quick release skewer is placed through the hollow of the front wheel’s axle, so that it protrudes on either end by a small amount. The wheel is then placed between the fork blades, so that the dropouts fit on to the skewer, on either side of the wheel axle. To secure the wheel to the bicycle, the rider tightens the nut on one end of the quick release device and presses the lever inward 90 degrees (relative to the skewer) on the other  [*5] end. The lever, acting as a cam, tightens the skewer so that the quick release device is pushing in on each dropout from the outside. This pressure ensures the wheel does not detach during riding; the wheel is essentially “pinched” in place.

One day while riding to work, the plaintiff realized he had forgotten his keys in his car and went back to get them. Getting close to a curb he popped or “bunny hopped” the front of his bike over the curb. The wheel came off and caught in the front brake stopping the bike and throwing the plaintiff into the sidewalk. He sustained injuries from the fall which generated the lawsuit.

The plaintiff sued the defendant bike manufacturer because the bike maker:

…negligently failed to incorporate a “secondary retention system” into the design of Sanny’s [plaintiff] bicycle, which would have acted as a safety mechanism when Sanny’s wheel detached. Plaintiffs also allege Trek failed to warn Sanny of the risk of front wheel detachment in bicycles without secondary retention devices. Finally, Plaintiffs argue they have stated a third claim alleging Trek’s post-sale failure to warn Sanny.

The defendant filed several motions (Motion for Summary Judgment, Motion to Exclude Testimony of Plaintiffs’ Expert Witness David Hallman, and Motion to Strike Changes to Deposition of Plaintiffs’ Expert David Hallman) which resulted in this opinion.

Summary of the case

Design Defect

The court first looked at the Design Defect claims of the plaintiff. Under Minnesota law to prove a design defect claim the plaintiff must prove three elements:

(1) the product was in a defective condition, unreasonably dangerous for its intended use; (2) the defect existed when the product left the manufacturer’s control; and (3) the defect proximately caused the plaintiff’s injury.

The three-part test is fairly common among the states. The test to determine if the three steps have been met is a balancing test. A product is defective if the manufacturer:

…fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.

What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.

Because “reasonable minds” could differ, or there were good arguments on both sides, the issue had to go before a jury. A judge is usually limited when the evidence only favors one side or the other or the evidence is so weak it cannot prove a point. Consequently, any question about evidence the court finds credible must go before a jury.

In this case, there were arguments on both sides that the design was or was not defective.

A sub-argument of Design Defect is whether there was a Feasible Alternative Design. This means whether or not there was a feasible, safer alternative to the design at question. If there was a feasible alternative design that the manufacturer did not use, the design defect claim is successful for the plaintiff.

If, at the time the manufacturer designed the product at issue, a safer, feasible design existed, it weighs in favor of finding the contested design unreasonably dangerous. Implicit in this evaluation, however, is the balance between utility and safety. If the alternative design increases safety at the cost of performance or utility, it may warrant the conclusion that the alternative design is not feasible.

In this case, several alternative designs exist, which incorporate secondary retention devices. The issue argued by the defendant was whether any of the designs actually increased bicycle safety. The defendant and the plaintiff then argued that the accident statistics the Defendant had shown a likelihood, of the necessity of a new design or a separate retention system.

… a manufacturer’s notice of other accidents addresses whether a manufacturer exercised sufficient care to eliminate any unreasonable risk of harm from foreseeable uses of its product at the time of design.

Here again, good arguments on each side of the issue means this issue will go before the jury.

Failure to Warn

The failure to warn argument boiled down to this. “Plaintiffs allege Trek failed to properly warn Sanny about the danger of riding a quick-release bicycle not equipped with a secondary retention device.” Under Minnesota law to prove a failure to warn claim, the plaintiff must prove:

(1) the defendant had reason to know of the dangers of using the product; (2) the warnings fell short of those reasonably required, breaching the duty of care; and (3) the lack of an adequate warning caused plaintiff’s injuries.

The plaintiff must prove, under causation, that the warning would have caused him (or her) to “act in a way that would have avoided the injury.” A product warning only needs to warn about the inherent dangers and the proper use of the product. There is no requirement to warn of other design possibilities.

The defendant won this argument because the plaintiff could not prove the causation issue. The plaintiff had been using quick-release hubs for 30 years by the time the accident occurred and had owned and used this bike for 16 years. On this bike, he used the quick release every 2-4 weeks and knew he would crash if he did not attach the wheel properly. Consequently, the court could not find that more information would have caused the plaintiff to act differently.

Failure to warn claim is one that most manufacturers are concerned about because they understand it the most. You must warn your customers of all hazards of your product. You must also warn them of using the product improperly. The problem with this is the improper use of the product does not appear to the manufacturer until after the product is in the market place for a long period of time. Improper use of the product also must be evaluated with any other product the manufacture’s product is used with. An example of this is if consumers are using an ascender improperly this may not make any difference to the ascender. It may continue to work perfectly. However, the ascender manufacturer would be liable if the manufacturer knew consumers were using the ascender improperly in a way that damaged the rope the ascender was attached to, causing the injury.

Post-Sale Failure to Warn

This claim is one of rising argument and interest. The issue is the plaintiff argues that the defendant had a duty after the purchase of the product to warn against the risk or dangers of a product that the manufacturer learned about post-sale. Meaning after the product has been sold and the risk is identified, there is a legal burden on the manufacturer to notify all owners of the potential for injury. This is not the same as a recall because a part can fail, this based on the plaintiff using the product incorrectly.

Explained differently, a recall is based on the fact the part fails and is going to be or must be fixed. The post-sale duty to warn does not mean the product is defective or has a failure of any part. The issue is the manufacturer learning about ways the product can fail or be used incorrectly.

The court looked at an automobile tire product liability case and found the following factors that contribute to a manufacturer’s post sale duty to warn include:

(1) the defendant’s knowledge of problems with the product since the late 1950s, including the knowledge that the product might explode with little provocation; (2) the hidden nature of the danger; (3) the fact that when explosions did occur, serious injury or death usually resulted; (4) defendant remained in that line of business, continued to sell parts for use with the product and had advertised the product within five years of the plaintiff’s injury; and (5) defendant had undertaken a duty to warn of product dangers.

The court seems to argue that the post-sale duty to warn arises when the manufacture creates or accepts a post-sale duty to warn.

“Several decisions have indicated that “continued service, communication with purchasers, or the assumption of the duty to update purchasers, is a necessary element” for a post-sale duty to warn.”

At this time, you can avoid the issue of post-sale duty to warn by informing your customers that you have no liability for informing them of any risks. You are not accepting a new duty. However, that is not how this new area of the law appears to be heading. Whether or not you have accepted the duty to warn consumer’s post-sale is not indicated in all courts.

However, in this case, the plaintiff did not properly plead a post-sale duty to warn in his complaint nor could they prove that the defendant undertook the duty to warn consumers.

In addition, Plaintiffs have not demonstrated whether Trek undertook a duty to warn consumers, or whether Trek engaged customers in ongoing relationships in a way that would give rise to a post-sale duty to warn.

Nor did the plaintiff prove quick-release devices issues usually lead to an injury.

The court also looked at arguments raised by the defendant in regard to the plaintiff’s expert opinion which is procedural and evidentiary in nature, so I’m not going to review them here.

So Now What?

This case is not over, so any “opinion” about it is very premature. However, the opinion is well-written and very educational and for that purpose, I believe it should be brought to your attention no matter who wins or how.

Besides a great explanation of Minnesota Product Liability law, you need to be aware of the following:

Common Critical Manufacture’s Error in Product Liability Cases

Many manufacturers believe that if the error leading to the accident was solely the responsibility of the user, then the manufacturer has no liability. That is not true. Remember, knowledge or foreseeability is important in any negligence or product liability action. If the manufacturer knew that quick releases could be put on improperly leading to injury, then the manufacturer could be liable.

In fact, this issue, of consumer error, is used to prove the plaintiff’s claims because it is an injury that was foreseeable. “Whether the wheel detached due to user error is immaterial, as Trek concedes user error of the quick-release device is a foreseeable cause of injury.”

Post-Sale Duty to Warn

Post-sale duty to warn is the upcoming issue. If you collect information from the consumer for any purpose, you need to (1.) Disclaim any post-sale duty to warn and/or (2.) place that duty on the consumer. If you are collecting information for marketing, the clearly identify that information as such.

At the same time, evaluate the opportunities that can be presented if you continue to communicate with your consumers. Marketing makes promises that risk management must pay for; however, proper marketing can continue to educate the consumer and keep them coming back to your website to learn of any warnings.

There may be a safer way to do something.

If you hear of a manufacturer, inventor or anyone who may have a safer way for the consumer to use your product you need to check it out. You must balance the cost of the new way of using/designing/manufacturing and/or the utility of the product against the effectiveness of what you are doing/designing/manufacturing/using now. You have to see if the injuries are real and if the new idea will prevent or lessen injures.

In this case, you have to lead the industry; you cannot follow.

If you are a manufacturer, you need to consult with an attorney who is an expert in product liability issues to make sure you are not creating product liability claims.

What do you think? Leave a comment.

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Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559

Sanny, v. Trek Bicycle Corporation, 2013 U.S. Dist. LEXIS 65559

John Sanny and Diana Sanny, Plaintiffs, v. Trek Bicycle Corporation, Defendant.

Civil No. 11-2936 ADM/SER

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

2013 U.S. Dist. LEXIS 65559

May 8, 2013, Decided

May 8, 2013, Filed

CORE TERMS: bicycle, retention, wheel, secondary, deposition, unreasonably dangerous, sheet, manufacturer, errata, post-sale, front wheel, detachment, summary judgment, question of fact, duty to warn, equipped, warning, failure to warn, notice, skewer, design defect, alternative design, engineering, corrections, feasible, deponent, warn, fork, dropout, tip

COUNSEL: [*1] Terry L. Wade, Esq., Vincent J. Moccio, Esq., and Brandon E. Vaughn, Esq., Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, on behalf of Plaintiffs.

Stephen J. Foley, Esq., Michael W. Haag, Esq., and Steven J. Erffmeyer, Esq., Foley & Mansfield, PLLP, Minneapolis, MN, on behalf of Defendant.

JUDGES: ANN D. MONTGOMERY, U.S. DISTRICT JUDGE.

OPINION BY: ANN D. MONTGOMERY

OPINION

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiffs John and Diana Sanny assert claims of design defect, failure to warn, and failure to provide post-sale warnings against Defendant Trek Bicycle Corporation’s (“Trek”). 1 On March 22, 2013, the undersigned United States District Judge heard oral argument on Trek’s Motion for Summary Judgment [Docket No. 77], Motion to Exclude Testimony of Plaintiffs’ Expert Witness David Hallman [Docket No. 76] (“Motion to Exclude”), and Motion to Strike Changes to Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] (“Motion to Strike”). For the reasons stated herein, Trek’s Motion for Summary Judgment is granted in part, its Motion to Strike is granted, and its Motion to Exclude is granted in part.

1 Plaintiffs withdrew their claims for negligent failure to recall and negligent failure to advise [*2] the Consumer Product Safety Commission of a product hazard, conceding Minnesota law does not recognize these claims. Pls.’ Mem. Opp. Summ. J. [Docket No. 95] (“Pls.’ Opp.”) 48-49.

II. BACKGROUND

A. Sanny’s Accident

At the time of his accident in 2009, John Sanny (“Sanny”) taught tennis and other classes at the University of Minnesota’s Minneapolis campus. Vaughn Aff. [Docket No. 96] Ex. UU (“Sanny Dep.”), at 18, 33-34. In 1993, Sanny purchased a used Model 930 Single Track bicycle, manufactured by Trek in 1990. The bicycle had a quick release mechanism, which allowed Sanny to quickly remove and replace the front wheel. About every 2-4 weeks, Sanny commuted to Cooke Hall, where he had an office, by driving to campus, parking in a nearby surface lot, and then riding his bicycle the remainder of the trip. Id. at 14-15. To fit his bicycle inside his car, Sanny routinely removed the bicycle’s front wheel. Id.

On September 10, 2009, Sanny arrived at the campus parking lot in the morning, about one hour before his class. Id. at 30. Sanny removed his bicycle from his car and attached the front wheel. Id. at 15-18. He then rode his bicycle about two-and-a-half blocks to Cooke Hall and entered the [*3] building before realizing he had left his keys in his car. Id. at 21, 30-31. Sanny returned to his bicycle and headed back to the parking lot to retrieve his keys. Id. at 30-31. As he approached the parking lot, he “bunny-hopped” a curb to cross the street. Id. at 24-25, 31; Haag Aff. [Docket No. 85] Ex. 2 (Map of accident site). The front wheel of his bicycle came loose and caught on the front brakes, causing the bicycle to come to a sudden stop. Vaughn Aff. Ex. VV (“Hallman Report”), at 2. Sanny was thrown face-forward off of his bicycle. See id. The first campus police officer to respond found Sanny on the pavement, bleeding and suffering from serious head and facial injuries. Vaughn Aff. Ex. A (“Welsh Dep.”), at 45-46.

On or about September 19, 2011, Plaintiffs filed suit against Trek. Plaintiffs allege Trek negligently failed to incorporate a “secondary retention system” into the design of Sanny’s bicycle, which would have acted as a safety mechanism when Sanny’s wheel detached. Compl. 2. Plaintiffs also allege Trek failed to warn Sanny of the risk of front wheel detachment in bicycles without secondary retention devices. Id. Finally, Plaintiffs argue they have stated a third claim [*4] alleging Trek’s post-sale failure to warn Sanny. Trek argues Plaintiffs did not sufficiently plead this claim.

B. Quick Release Device

A quick release mechanism, like the one used in Sanny’s bicycle, involves three major components: a bicycle fork designed for quick release use, a front wheel designed for the same, and the quick release device itself. In a bicycle equipped for a quick release tire, the front “fork blades”–the arms of the bicycle which hold the wheel–each end in an open, u-shaped “dropout.” The front wheel has a hollow axle, meaning the axle has a narrow, cylindrical hollow space running its length. The quick release device is a skewer that has an adjustable nut on one end and a lever on the other.

To connect the wheel to the bicycle, the quick release skewer is placed through the hollow of the front wheel’s axle, so that it protrudes on either end by a small amount. The wheel is then placed between the fork blades, so that the dropouts fit on to the skewer, on either side of the wheel axle. To secure the wheel to the bicycle, the rider tightens the nut on one end of the quick release device and presses the lever inward 90 degrees (relative to the skewer) on the other [*5] end. The lever, acting as a cam, tightens the skewer so that the quick release device is pushing in on each dropout from the outside. This pressure ensures the wheel does not detach during riding; the wheel is essentially “pinched” in place.

The alleged danger with quick release wheels is the risk that the quick release nut and/or lever become loose or completely undone during a ride. Because friction is the primary force keeping the wheel attached to the bicycle, a loss of “grip” by the quick release device means the dropouts are simply resting on top of the quick release skewer. If the rider of the bicycle in this situation lifts the front of his bicycle off of the ground, makes a sharp turn, or takes a similar action, the rider risks lifting the dropouts off of the axle and detaching the front wheel in mid-ride. In the present case, Plaintiffs and Trek agree that Sanny’s action in “hopping” over a curb to cross the street caused the front fork of his bicycle to lift off of and thus detach from his front wheel.

III. DISCUSSION

A. Motion for Summary Judgment

1. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure states a court shall grant summary judgment if no [*6] genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). If evidence sufficient to permit a reasonable jury to return a verdict in favor of the nonmoving party has been presented, summary judgment is inappropriate. Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995) (citations omitted). However, “the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, ‘the dispute must be outcome determinative under prevailing law.'” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citations omitted).

2. Design Defect

To establish a design defect claim under Minnesota law, a plaintiff must present specific facts establishing three elements: (1) the product was in a defective condition, unreasonably dangerous for its intended use; (2) the defect existed when the product left the manufacturer’s control; and (3) the defect proximately caused the plaintiff’s injury. Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn. Ct. App. 1991) [*7] (citing Bilotta v. Kelley Co., Inc., 346 N.W.2d 616, 624 (Minn. 1984)). Whether a product is defective is usually a question of fact; “only when reasonable minds cannot differ does the question become one of law.” Thompson v. Hirano Tecseed Co., Ltd., 456 F.3d 805, 809 (8th Cir. 2006).

For both negligence and strict liability claims, Minnesota courts use a “reasonable care” balancing test to determine whether a product is defective. Thompson, 456 F.3d at 809. Under this balancing test, a product is unreasonably dangerous, and thus defective, if the manufacturer:

fails to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended, as well as an unintended yet reasonably foreseeable use.

What constitutes “reasonable care” will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.

Mozes v. Medtronic, Inc., 14 F. Supp. 2d 1124, 1127 (D. Minn. 1998) (citing Bilotta, 346 N.W.2d at 621).

The [*8] parties dispute whether Sanny’s bicycle was unreasonably dangerous because it had no secondary retention device. Viewed as a whole, the evidence submitted by the parties would allow reasonable minds to disagree regarding whether Trek used reasonable care in choosing not to include a secondary retention device in the design of Sanny’s bicycle. Each category of evidence presented by the parties is discussed below.

a. Feasible alterative design

While not a prima facie element of a design defect claim, an important factor in determining whether a product is unreasonably dangerous is the availability of a feasible, safer alternative design. Kallio v. Ford Motor Co., 407 N.W.2d 92, 96-97 (Minn. 1987); Young v. Pollock Eng’g Group, Inc., 428 F.3d 786, 789 (8th Cir. 2005). If, at the time the manufacturer designed the product at issue, a safer, feasible design existed, it weighs in favor of finding the contested design unreasonably dangerous. Implicit in this evaluation, however, is the balance between utility and safety. If the alternative design increases safety at the cost of performance or utility, it may warrant the conclusion that the alternative design is not feasible. See, e.g., Unrein v. Timesavers, Inc., 394 F.3d 1008, 1012 (8th Cir. 2005) [*9] (holding expert must demonstrate proposed safety modifications do not “interfere with the machine’s utility”); Sobolik v. Briggs & Stratton Power Prods. Group, LLC, No. 09-1785, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *4-5 (D. Minn. Mar. 30, 2011) (finding plaintiff had submitted sufficient evidence to create question of fact on issue of safety, despite defendants’ arguments that proposed design would harm utility).

Here, the parties agree several feasible, alternative designs exist which incorporate secondary retention devices. In bicycle design terms, “secondary retention device,” or “positive retention device,” refers to any kind of mechanism that acts as a failsafe in the event a quick release wheel loosens or detaches from a bicycle’s dropouts. One of the most common secondary retention devices found in bicycles are “tabbed tips” or “tab tips.” Normally, the dropouts to which the quick release skewer attaches are completely smooth. On a bicycle with tab tips, the dropouts are not flat but have extended, outward-curving edges. With this design, if a quick release nut and handle are not fully tightened, they may still “sit” in these tab tips and keep the wheel in place even if the front of the bicycle [*10] lifts off of the ground. In other words, tab tips act as a kind of safety railing to hold a quick release wheel that is no longer firmly attached. Another type of secondary retention device is the “peg and eyelet” device, which essentially adds two washers to either side of the quick release skewer; the washers are then attached to the bicycle fork blades using pegs or hooks that connect to holes punched into the washers.

Although Trek agrees that several feasible alternative designs exist, it disputes whether any of these designs–namely, whether any secondary retention device–actually increases bicycle safety. As discussed below, whether a secondary retention device would have increased the safety of Sanny’s bicycle is a key question of fact that a jury must resolve.

b. Trek’s record of wheel separation claims

Until his death in 1995, Robert Read served as Trek’s Director of Engineering and as the primary person tracking and evaluating the safety of Trek’s quick release bicycles. Read investigated all wheel separation claims from 1985 until 1995, and kept a record of reported claims. Haag Aff. Ex. O. In 1990, Read made the decision that Trek would incorporate secondary retention devices [*11] in all of its quick release bicycles, and Trek initially used both peg and eyelet, and tab tip designs. Id.; see also Vaughn Aff. Ex. P., at 4. By 1991, every new Trek bicycle had a secondary retention device of some kind. Vaughn Aff. Ex. P., at 4. Sanny’s bicycle, manufactured in 1990, was among the last of the bicycles manufactured by Trek without a secondary retention device.

Plaintiffs argue that Trek’s own use of tab tips, and peg and eyelet devices demonstrate the safety benefit that results from secondary retention devices. Since 1985, Trek has recorded 58 claims of wheel separation. See Vaughn Aff. Ex. X (Trek’s wheel separation claims list). A simple review of these claims indicate that the majority of wheel separations were reported from 1985 until the early 1990’s, after which the number of incidents reported per year began to decrease. See id. Plaintiffs argue that the year-over-year decrease in wheel separation incidents was the result of Trek’s decision to incorporate secondary retention devices in its bicycles starting in 1990. The correlation between decreased incident reports and use of secondary retention devices, according to Plaintiffs, is evidence that the feasible [*12] alternative designs increase the safety of Trek bicycles.

Trek disputes the necessity of secondary retention devices. Trek argues that although it has received claims of wheel separation in quick release bicycles, the number of reported incidents is extremely low compared to the total number of Trek bicycles sold. In particular, Trek argues that it was only aware of nine instances of wheel separation by 1990. See Haag Aff. Ex. Y (“Read Dep.”), at 152-53. 2 By that time, Trek had sold over a million bicycles, resulting in a wheel separation rate of about 0.0009%. See id. at 80. Trek also argues that four of these nine recorded incidents involved bicycles equipped with peg and eyelet style retention devices. As a result, Trek, through Read, decided bicycles without secondary retention devices had substantially the same level of safety as bicycles equipped with secondary retention devices. Id. at 82-84. Trek claims that it nevertheless adopted secondary retention devices to avoid litigation.

2 Although Read testified that Trek was only aware of nine claims of wheel separation by January 1990, Trek’s documents reflect 11 claims. Vaughn Aff. Ex. X. The reason for the discrepancy is unclear.

Trek [*13] also disputes Plaintiffs’ interpretation of the larger number of wheel separation claims. At oral argument, Trek stated that of the 58 total claims of wheel separation it recorded, about 32 of the bicycles involved had secondary retention devices, further demonstrating these devices’ failure to increase safety. By way of explanation, Trek notes that secondary retention devices are cumbersome, and increase the risk of user error in properly securing a quick release wheel. Trek argues that the decrease in wheel separation claims in the 1990’s did not result from any design change; on the contrary, Trek argues the decrease resulted from Trek’s campaign to educate riders on the proper use of quick release devices. Plaintiffs respond that although some wheel detachments may have occurred in bicycles designed to hold secondary retention devices, many of the 32 bicycles in question were not actually equipped with such devices at the time of the accidents. Plaintiffs also complain that Trek destroyed most of its files associated with older wheel separation claims, preventing Plaintiffs from further investigating the particular circumstances of each claim. See Pls.’ Opp. 37.

As an initial matter, [*14] it is necessary to address whether evidence of other wheel separation claims will be admissible at trial, as only facts based on admissible evidence may be considered at the summary judgment stage. See JRT, Inc. v. TCBY Sys., Inc., 52 F.3d 734, 737 (8th Cir. 1995). In the area of product liability litigation, evidence of similar injuries or incidents “may be relevant to prove a product’s lack of safety or a party’s notice of defects.” J.B. Hunt Transport, Inc. v. Gen. Motors Corp., 243 F.3d 441, 444 (8th Cir. 2001). Similar incident evidence also risks raising “extraneous controversial issues,” confusing the issues, and being more prejudicial than probative. Id. (citation omitted). As a result, the offering party has the burden of demonstrating that the past incidents are substantially similar to the incident at issue. Id. at 445. Ultimately, the admission of such evidence is in the trial court’s discretion. Arabian Agric. Servs. Co. v. Chief Indus., Inc., 309 F.3d 479, 485 (8th Cir. 2002); Hammes v. Yamaha Motor Corp. U.S.A., Inc., No. 03-6456, 2006 U.S. Dist. LEXIS 26526, 2006 WL 1195907, at *12, n.2 (D. Minn. May 4, 2006).

Here, Trek’s prior wheel separation incidents bear relevant similarities to Sanny’s accident. [*15] Every prior incident involved a bicycle with a quick release device, and it is logical to assume the bicycle wheel detached during foreseeable use. See, e.g., Schaffner v. Chicago & N.W. Transp. Co., 129 Ill. 2d 1, 541 N.E.2d 643, 660, 133 Ill. Dec. 432 (Ill. 1989) (reaching same conclusion in similar circumstances). Whether the wheel detached due to user error is immaterial, as Trek concedes user error of the quick release device is a foreseeable cause of injury. Def.’s Mem. Supp. Summ. J. [Docket No. 81] (“Def.’s Mem.”) 15. In this case, the parties agree that wheel separation incidents may be grouped together to demonstrate comparative safety and overall incident trends. See, e.g., id. at 14. In addition, the offered evidence is summary in nature and thus avoids the risk of unfair prejudicial effect. As a result, the evidence of Trek’s past wheel separation incidents is likely to be admitted in some form at trial.

Arguing against this conclusion, Trek cites Magistrate Judge Rau’s holding that Plaintiffs failed to demonstrate how Sanny’s injuries compare to the majority of injuries suffered in other wheel detachment accidents. See Order, Jan. 2, 2013 [Docket No. 69] 8. Before Judge Rau, Plaintiffs argued for the appropriateness [*16] of punitive damages in part by describing several specific examples of injuries suffered by Trek bicycle riders. Judge Rau properly held that Plaintiffs had failed to demonstrate that injuries as serious as Sanny’s had occurred in the majority of wheel detachment claims. Id. As a result, Judge Rau held Plaintiffs had not demonstrated injuries rising to the level of seriousness required by Minnesota’s punitive damages statute. Id. Here, the evidence at issue is not of past injuries, but of the wheel detachments themselves. As discussed above, this more limited evidence is probative of the design’s safety and Trek’s notice of prior accidents. See, e.g., Broun, Kenneth, McCormick on Evidence § 200 (7th ed. 2013) (when evidence of other accidents used to show manufacturer’s notice, similarity to accident at issue “can be considerably less” than for other purposes). As such, evidence of past wheel separation claims may be relevant at trial for a purpose other than that argued in the punitive damages context.

The admissible evidence of Trek’s prior wheel separation claims supports a finding that genuine issues of material fact exist. Among other things, evidence of prior accidents may demonstrate: [*17] (1) a design defect; or (2) the manufacturer’s knowledge that prior accidents had occurred. See Lovett v. Union Pac. R. Co., 201 F.3d 1074, 1081 (8th Cir. 2000). Regarding the former purpose, evidence of similar accidents may indicate that the product at issue is unsafe and thus defective. See id. Even accidents occurring after the accident in question may be probative of safety. 4 See Indep. Sch. Dist. No. 181, Brainerd v. Celotex Corp., 309 Minn. 310, 244 N.W.2d 264, 266 (Minn. 1976); Steenson, Michael K., et al., 27 Minn. Practice Series § 12.9 (2012 ed.). Regarding the latter purpose, a manufacturer’s notice of other accidents addresses whether a manufacturer exercised sufficient care to eliminate any unreasonable risk of harm from foreseeable uses of its product at the time of design. See, e.g., Hammond v. Compaq Computer Corp., No. 06-1670, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4-5 (D. Minn. Sept. 29, 2009) (potential foreseeability of harm addressed in part whether manufacturer used reasonable degree of care in design).

4 In this case, evidence of accidents occurring after Sanny’s injuries may be relevant because, as Trek concedes, bicycles have a long useful life. As a result, bicycles manufactured at the same [*18] time as or before Sanny’s bicycle may have had wheel detachments after Sanny’s accident.

Trek’s history of wheel separation claims creates a question of fact regarding whether Trek exercised reasonable care in its failure to include a secondary retention device in its 1990 design of the bicycle Sanny later purchased. First, the parties dispute the significance of what these prior incidents demonstrate concerning the effectiveness of secondary retention devices. Plaintiffs argue Trek’s wheel separation claims decreased in the early 1990’s because of Trek’s use of secondary retention devices; Trek argues proper education in the use of quick release devices increased safety despite the presence of secondary retention devices. The parties’ differing but reasonable views of the same evidence demonstrates a question of fact. See, e.g., Riedl v. Gen. Am. Life Ins. Co., 248 F. 3d 753, 756 (8th Cir. 2001) (citation omitted). Second, the pre-1991 incidents of wheel separation are evidence that Trek had some notice of the risks associated with quick release devices, which creates a question of fact regarding the reasonableness of its decision to forgo secondary retention devices until 1990-91.

In [*19] addition, the parties’ disagreement over the specifics of the wheel separation evidence itself also precludes summary judgment. The parties simply disagree about how many of the pre-1991 wheel separations involved bicycles that had actually been equipped with secondary retention devices. Neither party has provided any evidence that conclusively resolves the discrepancy; instead, the parties rely on the contradictory recollections of deponents. See Read Dep. 152-53; Vaughn Aff. Ex. QQ (“Bretting Dep.”) 81-91. Further, Trek has no evidence showing that any of the bicycles involved in the recorded wheel detachments were actually equipped with secondary retention devices at the time of detachment. 5 A direct, factual conflict over Trek’s wheel separation data exists, and at summary judgment this conflict must be resolved in favor of Plaintiffs.

5 Trek also argues Plaintiffs have failed to present statistical evidence, such as through a study using epidemiological methods, that secondary retention devices have resulted in statistically significant increases in safety. However, such an analysis is not necessary to establish a question of fact in a design defect case. See, e.g., Sobolik, 2011 U.S. Dist. LEXIS 33911, 2011 WL 1258503, at *3 [*20] (holding even a single prior accident could establish question of fact); see also Hammond, 2009 U.S. Dist. LEXIS 90245, 2009 WL 3164797, at *4 (finding question of fact although product had been manufactured 1.5 million times and used without incident).

c. Industry standards

i. Industry publications

Industry standards at the time the manufacturer chose the design at issue is one factor in determining the manufacturer’s exercise of reasonable care. See, e.g., Buchanna v. Diehl Mach, Inc., 98 F.3d 366, 371 (8th Cir. 1996) (interpreting comparable Arkansas law and holding evidence of compliance with industry standards not conclusive proof of safety, but rather “competing evidence from which to choose”). Plaintiffs submit excerpts from patents, publications, books, and other materials indicating bicycle manufacturers and consumers had discussed the safety of quick release devices well before 1990. See, e.g., Vaughn Aff. Ex. J (excerpt from 1984 edition of American Bicyclist and Motorcyclist magazine noting availability of secondary retention devices). Trek does not dispute the veracity of these documents, nor does it offer any reason why Plaintiffs’ submitted evidence on this topic should be disregarded. Thus, this evidence [*21] further establishes a genuine question of material fact, as it suggests Trek knew or should have known that others in the bicycle industry had acknowledged the risk of harm resulting from quick release wheel separation, and that other manufacturers had already begun implementing secondary retention devices.

ii. Schwinn Bicycles

Plaintiffs also cite the actions of Schwinn Bicycles (“Schwinn”), another bicycle manufacturer, as evidence of the industry standard. In particular, Plaintiffs describe the development of the “Brilando clip” by Frank Brilando, a retired Schwinn employee. Testifying in a deposition for previous product liability litigation against Trek, Brilando stated that in the late 1960’s and early 1970’s Schwinn became concerned about the number of occurrences of quick release wheel separations. Vaughn Aff. Ex. D (“Brilando Dep.”), at 25-27 (testimony from Thurston v. Trek Bicycle Corp., No. PI-96-013351 (Hennepin Dist. Ct. 1998)). As a result, Schwinn halted sales of a particular bicycle model that used a quick release device. Id. at 88-89. Brilando then designed and patented the “Brilando clip,” two of which affix to the quick release skewer. When attaching a quick release [*22] wheel, the rider then manually clips the other ends of the Brilando clips to specially-mounted pegs extruding from the fork blades. Id. at 37-40.

Plaintiffs argue Brilando’s testimony demonstrates the safety conferred by secondary retention devices in general. Schwinn began incorporating Brilando clips into its quick release designs in 1976. From 1968 to 1985, Schwinn received 131 reports of wheel detachments in quick release bicycles without secondary retention devices. Vaughn Aff. Ex. E (Schaffner Stipulation). To Brilando’s knowledge, Schwinn did not receive a single report of wheel detachment in bicycles equipped with these secondary retention devices from 1976 to 1992, when Brilando retired. Id. at 55-56. From this evidence, Plaintiffs argue a jury could reasonably conclude secondary retention devices feasibly increase the safety of quick release bicycles.

Trek responds that Brilando’s testimony is both hearsay and irrelevant. In terms of admissibility, Trek argues Brilando’s deposition transcript is hearsay, and that Plaintiffs never noticed Brilando as an expert witness or submitted an expert report by him. Even if his testimony was admissible, Trek argues neither Brilando nor [*23] Schwinn considered quick release bicycles without secondary retention devices to be defective in the early 1990’s. See Schaffner v. Chicago & N.W. Transp. Co., 161 Ill. App. 3d 742, 515 N.E.2d 298, 113 Ill. Dec. 489 (Ill. Ct. App. 1987) (affirming jury verdict that a 1973 Schwinn bicycle was not unreasonably dangerous because it lacked secondary retention device), aff’d, 129 Ill. 2d 1, 541 N.E.2d 643, 133 Ill. Dec. 432; Brilando Dep. 149-50.

Based on the current record, at least some of Brilando’s deposition testimony from Thurston is likely to be admissible at trial. Plaintiffs’ counsel submitted an affidavit stating Brilando was unavailable as a witness in this case due to his age, physical condition, and deteriorating memory. Vaughn Aff. ¶ 4. Also, Brilando’s prior deposition was taken in a product liability lawsuit against Trek, in which Trek’s previous counsel had the “opportunity and similar motive to develop [the testimony] by direct, cross-, or redirect examination.” Fed. R. Evid. 804(b)(1)(B). As a result, Brilando’s testimony appears to qualify for an exception to the rule against hearsay. However, Trek is correct that Plaintiffs did not disclose Brilando as an expert witness. As a result, Brilando’s opinions are inadmissible; only his factual knowledge [*24] of Schwinn’s bicycle designs and safety record will be received in evidence.

Brilando’s testimony is an additional factor leading to the conclusion that there is a genuine question of fact for jury consideration. Brilando testified that Schwinn received zero claims of quick release wheel separations in bicycles equipped with the Brilando clips, which may lead a jury to conclude Schwinn’s secondary retention device increased the safety of quick release bicycles. Also, although Brilando’s knowledge was limited in some respects, his testimony is some evidence of the bicycle industry standards at the time Trek chose the design for Sanny’s bicycle.

iii. CPSC rules and ASTM standards

The parties argue at length regarding the significance of rules promulgated by the Consumer Product Safety Commission (CPSC) for bicycle safety. The CPSC is tasked with protecting the public against injury resulting from consumer products, and performs education, research, and rule-making functions. The history of how bicycle safety came under the CPSC’s purview is stated in Forester v. Consumer Prod. Safety Comm’n, 559 F.2d 774, 182 U.S. App. D.C. 153 (D.C. Cir. 1977), and a detailed summary is not necessary here. Of relevance, however, [*25] is the CPSC’s decision in 1978 to promulgate a rule addressing bicycle wheel hubs. See 16 C.F.R. § 1512.12. In § 1512.12, the CPSC required front wheel hubs to have positive retention devices but specifically exempted quick release bicycles. Id. § 1512.12(c).

The parties offer very different views of how the CPSC’s position on quick release bicycles evolved. Plaintiffs argue that bicycle manufacturers had previously only marketed quick release devices to bicycle racers, and that Schwinn, leading the industry, had only just begun marketing quick release devices to casual riders by 1978. Plaintiffs cite evidence that by 2004, the CPSC had begun urging ASTM International (formerly known as the American Society for Testing and Materials), an organization that adopts voluntary manufacturing standards, to take the position that all quick release devices should have secondary retention devices. See, e.g., Vaughn Aff. Ex. M. Trek responds that ASTM standards are entirely voluntary and that if the CPSC had truly determined quick release devices to be unsafe, the agency would have taken regulatory action. In addition, Trek cites a CPSC bicycle safety study from 1994 in which the agency concluded [*26] no revisions to its bicycle regulations were required. Haag Aff. Ex. N.

The evidence offered by the parties regarding the CPSC is of limited value. Although Plaintiffs credibly argue the CPSC had begun advocating for voluntary standards adopting the use of secondary retention devices, all of the cited evidence dates from 2004 or later: well after Trek designed Sanny’s bicycle. Conversely, Trek’s cited study from 1994 does reflect the CPSC’s determination that it did not need to revise its safety standards; however, the CPSC’s report did not specifically address quick release devices or secondary retention devices. Plaintiffs’ evidence also indicates that the CPSC may have chosen to pursue non-regulatory safety standards for quick release devices, and that bicycle companies had failed to report wheel detachments to the CPSC. In short, much of the CPSC evidence does not reflect industry standards in 1990; to the extent any of the evidence is relevant, it is conflicting and further raises questions of fact.

d. Summary

Ultimately, reasonable minds could disagree as to whether Trek used reasonable care in evaluating the balance between safety and utility at the time of the manufacture of Sanny’s [*27] bicycle. As Trek concedes, bicycle accidents often result in serious injury, and occasionally in death. Def.’s Mem. 5-7. However, Trek argues that the wheel detachment rate is so small that although serious injury or death is possible, the design at issue cannot be unreasonably dangerous, even if several feasible alternative designs exist. In 1990, Trek considered much of the same evidence now before the Court and decided to forgo secondary retention devices. In Trek’s view, these retention devices did not tangibly increase safety and also decreased the utility of the quick release device. Weighing the reasonableness of that decision, and the risk of harm against its seriousness, is a question of fact best decided by a jury. See Thompson, 456 F.3d at 809.

3. Failure to Warn

In addition to their design defect claim, Plaintiffs allege Trek failed to properly warn Sanny about the danger of riding a quick release bicycle not equipped with a secondary retention device. Under Minnesota law, a plaintiff claiming a failure to warn must show: “(1) the defendant[] had reason to know of the dangers of using the product; (2) the warnings fell short of those reasonably required, breaching the duty [*28] of care; and (3) the lack of an adequate warning caused plaintiff’s injuries.” Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 924 (8th Cir. 2004) (quotation omitted). To establish causation, a plaintiff must demonstrate that a warning would have caused him or her to act in a way that would have avoided the injury. See Ramstad v. Lear Siegler Diversified Holdings Corp., 836 F. Supp. 1511, 1516 (D. Minn. 1993).

Plaintiffs claim must fail for two reasons. First, Plaintiffs allege Trek failed to warn Sanny that his bicycle lacked a secondary retention device. However, a product warning need only warn about the inherent dangers and proper use of the product; there is no requirement that a product warning instruct the user as to other possible designs or products. See Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572, 582 (Minn. 2012).

Second, Plaintiffs cannot establish the element of causation. Sanny testified he had owned quick release bicycles since the late 1970’s and had at least a passing familiarity with quick release devices since that time. Sanny Dep. at 11-15. Sanny had owned this Trek bicycle for about 16 years before his accident. See id. at 14. During the year before his accident, [*29] Sanny testified he installed and removed his quick release wheel every 2 to 4 weeks and agreed that he was “perfectly competent” to do so. Id. at 14-15. In addition, Sanny also testified he knew he could crash if he did not properly secure his quick release device. 6 Sanny Dep. 46-51. Although causation is usually a question of fact, Sanny’s own testimony precludes Plaintiffs’ failure to warn claim in this case. Plaintiffs cannot show how warning Sanny as to the potential dangers and proper use of a quick release device would have caused him to act differently, because Sanny admits he already possessed all of the information that would be included in a legally adequate warning. See Ramstad, 836 F. Supp. at 1516.

6 At his deposition, Sanny initially disputed knowing how sudden the accident resulting from a wheel detachment could be, testifying, “I don’t think anybody has an idea they’re going to go crashing to the ground.” Sanny Dep. 48. Trek’s counsel then asked: “So you think you needed someone to tell you beforehand that if the front wheel became detached from the fork that you should have been warned there could be a catastrophic – you could fall off the bike?” Sanny answered, “No, [*30] sir.” Trek’s counsel confirmed, “You knew that?” Sanny responded, “Yes.” Id. at 48-49.

4. Post-Sale Failure to Warn

Plaintiffs also allege Trek had a duty to contact Sanny after his purchase of the bicycle to warn him about the risks of using a quick release device without a secondary retention mechanism. Minnesota has recognized a manufacturer’s post-sale duty to warn “only in special cases.” Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988). No specific test for establishing a post-sale duty to warn exists, but Hodder noted several factors warranting the recognition of a duty in that case, including:

(1) the defendant’s knowledge of problems with the product since the late 1950’s, including the knowledge that the product might explode with little provocation; (2) the hidden nature of the danger; (3) the fact that when explosions did occur, serious injury or death usually resulted; (4) defendant remained in that line of business, continued to sell parts for use with the product and had advertised the product within five years of the plaintiff’s injury; and (5) defendant had undertaken a duty to warn of product dangers.

Ramstad, 836 F. Supp. at 1517 (analyzing Hodder). [*31] Several decisions have indicated that “continued service, communication with purchasers, or the assumption of the duty to update purchasers, is a necessary element” for a post-sale duty to warn. McDaniel v. Bieffe USA, Inc., 35 F. Supp. 2d 735, 741 (D. Minn. 1999) (collecting cases).

As an initial matter, Trek argues Plaintiffs have not properly pled a claim for post-sale failure to warn. Trek argues that nowhere in the Complaint did Plaintiffs allege sufficient facts to state a claim under the basic notice pleading standards of Rule 8 of the Federal Rules of Civil Procedure and the fair notice requirements of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). Plaintiff responds that the following allegations put Trek on notice of this claim:

The separation of the front wheel from the front fork of the subject Trek 930 Single Track bicycle and the resulting injuries to Plaintiff John Sanny were caused and contributed by the negligent conduct of Defendant. Said negligence includes, by way of example, but is not limited to, the following:

1. Negligent failure to incorporate a backup safety retention system into the design of the front wheel attaching mechanism to prevent the front wheel [*32] from detaching from the frame in the event the primary attaching mechanism came loose;

2. Negligent failure to advise customers of alternative designs employing such safety retention systems;

3. Negligent failure to advise consumers of the importance of such safety retention systems, and that unintentional misapplication of the primary attaching mechanisms was a known and recurring danger.

Compl. 2. In addition, Plaintiffs rely on a letter their counsel sent to Trek’s counsel before filing the Complaint, in which Plaintiffs cited Hodder and discussed post-sale failures to warn. Pls.’ Opp. 46.

Plaintiffs failed to state a claim for post-sale duty to warn in the Complaint. Under the pleading standards of Twombly and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), plaintiffs must state more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Plaintiffs have not even crossed this minimal threshold of stating a claim for post-sale duty to warn. Nothing in the above-quoted language would put Trek on notice that Plaintiffs had alleged a post-sale duty to warn claim, a claim that arises “only in special cases.” Plaintiffs did not allege [*33] Trek had a post-sale duty of any kind, nor did the Complaint even allude to Trek’s knowledge of a “hidden danger” or the existence of other Hodder factors. Although Plaintiffs explicitly discussed a post-sale duty to warn in their letter to Trek’s counsel, pre-litigation communications may not supplement legal pleadings. See, e.g., Garth v. White, No. 4:06-CV-1112 CAS, 2007 U.S. Dist. LEXIS 53062, 2007 WL 2128361, at *1 (E.D. Mo. July 23, 2007). Allowing such supplementation would defeat the purpose of pleading requirements, and allow plaintiffs to scatter hidden claims among their unfiled, unserved communications.

Even if Plaintiffs had stated a claim for a post-sale duty to warn, they have not demonstrated material questions of fact on that claim. Plaintiffs attempt to portray the potential risks associated with quick release devices as hidden by Trek from its own employees, making the risk more pernicious in nature and warranting a continuing duty to warn. But as Judge Rau observed, Plaintiffs’ own efforts to demonstrate the widely-known risks associated with quick release devices defeats this argument. Order, Jan. 2, 2013 at 6-7. In addition, Plaintiffs have not demonstrated whether Trek undertook a duty to [*34] warn consumers, or whether Trek engaged customers in ongoing relationships in a way that would give rise to a post-sale duty to warn. See McDaniel, 35 F. Supp. 2d at 741. Finally, while the potential for serious harm exists as a result of quick release devices, Plaintiffs have not demonstrated that serious harm “usually” results from use of such devices. Ramstad, 836 F. Supp. at 1517. Although no one factor is necessarily determinative under Hodder, Plaintiffs have not demonstrated the necessary “critical mass” to establish a post-sale duty to warn in this case.

B. Motion to Strike Errata Sheet

Trek’s second motion asks the Court to strike Plaintiffs’ expert David Hallman’s errata sheet from the record. Hallman is a materials/mechanical engineer with Crane Engineering, a company based in Plymouth, Minnesota. See Hallman Report. Hallman possesses degrees in mechanical engineering, and in materials science and engineering. He has also conducted limited research in the area of automobile accidents, and has attended conferences and seminars about vehicle accidents. Hallman has never professionally studied or worked on bicycles or bicycle design. Plaintiffs consulted Hallman for his opinions [*35] not only on the nature of Sanny’s accident, but also regarding Trek’s design choices and the safety of quick release devices.

Trek deposed Hallman on November 14, 2012. At the end of the deposition, neither Hallman nor Plaintiffs’ counsel requested the right to review and make corrections to Hallman’s testimony. Nevertheless, exactly 30 days later Hallman submitted an errata sheet indicating 57 edits to his deposition testimony. Many of his changes completely reverse or substantively amend Hallman’s original answers to Trek’s deposition questions. For example, Trek’s counsel asked Hallman about the kind of wheel hub Sanny’s bicycle had, and Hallman originally answered, “I don’t remember.” Haag Aff., Jan. 29, 2013 [Docket No. 73] Ex. Q (“Hallman Dep.”), at 50. On the errata sheet, Hallman changed this answer to “Sanny’s bicycle had a Sansin hub on the front wheel.” Id. at Ex. FF (“Errata Sheet”). In another instance, counsel asked Hallman if he knew of any engineering standards that might require a bicycle manufacturer to recall older designs, and Hallman answered, “No.” Hallman Dep. 104. On the errata sheet, Hallman changed this to: “Engineering standards, no. Engineering ethics (NSPE [*36] or ABET) would require it. An engineer’s primary responsibility is to protect the public. A recall would have done that.” Errata Sheet at 2. Several of Hallman’s edits actually include page and line citations to other depositions. Hallman did not provide any explanation for his changes.

Trek argues Hallman’s errata sheet not only fails to meet the technical requirements of the federal rules, it also abuses the purpose of the rules, making it impossible to fairly depose a witness. Plaintiffs respond that Hallman’s changes reflect clarifications or corrections consistent with Hallman’s reported opinions, and that some reflect information with which Hallman later became familiar.

The process for submitting an errata sheet is straightforward. Under Rule 30(e) of the Federal Rules of Civil Procedure allows a deponent or party, before the deposition is completed, to request the option to review the deposition transcript or recording and sign a statement listing changes “in form or substance” and “the reasons for making them.” Once the transcript or recording is available, the deponent or party making the request has 30 days to review and submit corrections. See Fed. R. Civ. P. 30(e).

Although [*37] the procedural requirements are clear, Courts have divided on the use of errata sheets to make changes beyond basic corrections. Several courts have followed the reasoning in Lugtig v. Thomas, 89 F.R.D. 639 (N.D. Ill. 1981), in which a deponent made 69 substantive changes to his deposition. The court held that the phrase “changes in form or substance” plainly allowed any changes, even when those changes contradicted original answers or were otherwise unconvincing. Id. at 641. However, the court required the original deposition testimony to remain a part of the record, and held opposing counsel could read the original deposition to the jury at trial. Id. The court also allowed opposing counsel to conduct an additional deposition if the errata sheet made the original deposition “incomplete or useless.” Id. at 642. These measures, the court held, would check abuse. Id.

Plaintiffs cite three decisions from this district to support its argument of allowing substantive changes. See ADT Sec. Servs., Inc. v. Swenson, No. 07-2983, 2010 U.S. Dist. LEXIS 3456, 2010 WL 276234, at *7-8 (D. Minn. Jan. 15, 2010), overruled on other grounds, 2010 U.S. Dist. LEXIS 74987, 2010 WL 2954545; Morse v. Walgreens Co., No. 10-2865, 2011 U.S. Dist. LEXIS 87709, 2011 WL 3468367, at *3 n.3 (D. Minn. Aug. 8, 2011); [*38] and Nw. Airlines, Inc. v. Am. Airlines, Inc., 870 F. Supp. 1504, 1508 (D. Minn. 1994). Although Hallman’s corrections far surpass the corrections made in these cases in terms of volume and substance, these decisions did indeed hold a deponent could substantially change one or more aspects of their deposition testimony.

Trek acknowledges a division among courts on the use of errata sheets, but argues that preventing depositions from becoming “take home examinations” is the better view. See Greenway v. Int’l Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992). In Greenway, the plaintiff made 64 significant changes to his deposition via an errata sheet. Id. at 323. The court ordered deletion of the changes, holding Rule 30(e) only existed to allow a party to correct errors made by the court reporter. The rule did not allow a deponent to “alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all then return home and plan artful responses.” Id. at 325. Numerous courts have agreed. See, e.g., Norelus v. Denny’s, Inc., 628 F.3d 1270, 1281-82 (11th Cir. 2010) (collecting cases). The Eighth Circuit has not yet taken a position on either side [*39] of the division of authority.

Ultimately, a flexible approach, such as the one articulated by the Third Circuit Court of Appeals, best serves the interests of fairness and efficiency. See EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 267-68 (3d Cir. 2010). In EBC, the court noted that allowing the original deposition to be read at trial, or allowing a supplemental deposition after the submission of an errata sheet, would offer “cold comfort” to a party that might otherwise have prevailed at summary judgment. See id. at 268. Likening the situation to the court’s view of “sham affidavits,” the Third Circuit held that a “one-size-fits-all rule” would not be appropriate. 7 Id. at 270. The court thus held district courts have the discretion to strike substantive changes made in errata sheets, if the deponent fails to provide “sufficient justification.” Id. EBC’s reasoning is persuasive, in particular because the Eighth Circuit has also articulated a flexible, though cautious, approach to striking “sham affidavits.” See, e.g., City of St. Joseph v. Sw. Bell Tel., 439 F.3d 468, 475-76 (8th Cir. 2006).

7 The “sham affidavit” doctrine, used in both the Third and Eighth circuits, permits courts [*40] to “ignore affidavits that contradict earlier deposition testimony without adequate explanation . . . .” EBC, 618 F.3d at 268; Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1365-66 (8th Cir. 1983).

In this case, Hallman’s errata sheet will be stricken. Significantly, and unlike in the cases cited by Plaintiffs, neither Hallman nor Plaintiffs’ counsel exercised their right to review Hallman’s deposition transcript and submit a signed sheet of corrections. Since 1991, Rule 30(e) has required either the deponent or a party to request the right to review and sign before the conclusion of the deposition. Fed. R. Civ. P. 30(e) advisory committee’s note. Here, neither Hallman nor Plaintiffs made this request, either before or after the deposition concluded, and they have not articulated good cause for failing to do so. In addition, Hallman did not state a single explanation or justification for his numerous and substantive edits. Trek’s motion to strike could be granted on these bases alone.

Just as importantly, Hallman’s edits unquestionably reflect an attempt to bolster the substance and credibility of his testimony, and the submission of these edits occurred just after the [*41] deposition deadline had passed and shortly before the dispositive motion deadline. See Stip. to Amend Scheduling Order [Docket No. 16]. Many of Hallman’s “corrections” include citations to the record, to statutes and jury instruction models, and to engineering standards never once mentioned in the original deposition. Reading Hallman’s original deposition to the jury as a counterbalance to his edited testimony would offer “cold comfort” to Trek, which seeks to exclude his expert witness testimony at the dispositive motion stage. See EBC, 618 F.3d at 268. Similarly, allowing Trek to further depose Hallman as this stage could cause significant inefficiency and delay. Under the circumstances of this case, Hallman’s errata sheet will be stricken.

C. Motion to Exclude Expert Testimony

Finally, Trek moves to exclude Hallman’s testimony as Plaintiffs’ expert. Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the [*42] trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. Rule 702 reflects but does not codify the holding of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and the cases interpreting Daubert, including Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Fed. R. Evid. 702 advisory committee’s note.

Under Daubert, trial courts act as “gatekeepers” to ensure that: the proposed expert testimony is useful to the factfinder in deciding the ultimate fact issue; the expert witness is qualified; and the proposed testimony is “reliable or trustworthy in an evidentiary sense. . . .” Lauzon v. Senco Prods., Inc., 270 F.3d 681, 686 (8th Cir. 2001). In addition to Rule 702, trial courts may consider several factors set out by Daubert for determining reliability, including: (1) whether the theory can be (and has been) tested; (2) whether the theory has been subject to peer review and publication; (3) the known or potential rate of error; and [*43] (4) whether the theory enjoys general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593-94. Courts have also considered whether “the expertise was developed for litigation or naturally flowed from the expert’s research.” Lauzon, 270 F.3d at 687.

No single Daubert or Rule 702 factor is determinative. Instead, the trial court must evaluate reliability in a flexible manner, as the Daubert factors may not necessarily apply “to all experts or in every case.” Kumho, 526 U.S. at 141. Thus, the trial court has broad discretion not only in ultimately determining reliability, but also in how it determines reliability. Id. at 142. Finally, the trial court should generally resolve doubts about the usefulness of an expert’s testimony in favor of admissibility. Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006). “Only if the expert’s opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded.” Bonner v. ISP Techs., Inc., 259 F.3d 924, 929-30 (8th Cir. 2001).

Hallman produced two reports. In support of each, Hallman reviewed patents, Trek’s promotional and safety materials, documents produced in this and [*44] other litigation, and the Minnesota jury instruction guide. Hallman also visited stores and casually observed bicycles in use. In terms of testing, Hallman used equipment to test the strength of properly and improperly affixed quick release devices on a single Trek bicycle, and he also studied the results from Trek’s similar, internal tests. See Hallman Dep. 49-50. Hallman did not similarly test the effect of secondary retention devices, nor did he review similar testing by another party. With this background, Hallman opined that the design of Sanny’s bicycle was unreasonably dangerous, and that tab tips or a similar secondary retention device would have prevented Sanny’s accident. Hallman also evaluated Sanny’s bicycle and concluded that Sanny’s quick release became loose while it was locked to a bicycle post outside of his workplace, shortly before Sanny’s accident.

1. “Unreasonably Dangerous” Opinion

Trek asserts that Hallman reached his ultimate conclusion–that Sanny’s bicycle was unreasonably dangerous–without reliable bases and without the proper qualifications. Trek argues Hallman’s definition of “unreasonably dangerous” relies on circular logic and that his overall opinion is [*45] not based on data but on his own self-serving assertions. It also argues Hallman neither conducted tests nor conducted a statistically reliable study of data demonstrating an increase in safety from secondary retention devices. Trek also argues Hallman has no professional experience in bicycle safety or design, a prerequisite for experts in this case.

Hallman’s ultimate opinion regarding whether Sanny’s bicycle was “unreasonably dangerous” must be excluded. In his deposition, Hallman never clearly articulated his definition for “unreasonably dangerous.” Instead, Hallman circuitously defined an unreasonably dangerous product as one that was “more likely to cause injury” than a product that was not unreasonably dangerous. Hallman Dep. 5-6. As discussed above, “unreasonably dangerous” is a key legal consideration in a design defect claim. While an expert may testify as to the ultimate question before the factfinder, he may be prevented from doing so if his testimony in this regard is more likely to confuse a jury than aid it. Cf. United States v. Kelly, 679 F.2d 135, 136 (8th Cir. 1982) (allowing expert to testify as to ultimate question in part because testimony used commonly understood [*46] legal terms, thus avoiding risk of confusion).

In addition, Hallman did not conduct any testing of secondary retention devices. Hallman tested the reliability of a quick release device operating without a secondary retention mechanism, and also studied similar tests by Trek. He thus concluded that an improperly-affixed device could easily come loose. But Hallman conducted no similar analysis for bicycles equipped with secondary retention devices. On the other hand, because manufacturers have sold various secondary retention devices in the market for many years now, testing is not necessarily a requisite for an opinion about safety. See, e.g., Young, 428 F.3d at 790.

Here again, however, Hallman did not conduct any repeatable analysis in support of his opinion that a bicycle without secondary retention devices is unreasonably dangerous. Under Rule 702, the court’s primary concern is an expert’s methodology, not their conclusions. Bonner, 259 F.3d at 929. Hallman did not use a particular method to reach his ultimate conclusion. Instead, he simply reviewed deposition transcripts and Trek’s wheel detachment data and formed his opinion. See Hallman Dep. 23-25. Nothing about this opinion derives [*47] from scientifically reliable or repeatable methods; it simply affirms Plaintiffs’ view of the evidence without adding insight. A jury could, and should, draw its own conclusions about the testimony and data using common sense. Hallman’s view that Sanny’s bicycle was unreasonably dangerous would not assist the jury.

2. Failure to Warn Opinion

Because the Court grants Trek’s motion for summary judgment on Plaintiffs’ failure to warn claim, Hallman’s testimony in this area is irrelevant. Even if Plaintiffs’ failure to warn claim survived, Hallman’s testimony would not be admissible. In the failure to warn context, experts typically opine regarding a warning’s design or content, or whether a warning could have prevented the accident in question. See, e.g., Finke v. Hunter’s View, Ltd., 596 F. Supp. 2d 1254, 1263 (D. Minn. 2009). Here, Hallman opines only that Trek should have advised Sanny and other consumers of the risk in riding without secondary retention devices. See Pls.’ Mem. Opp. Mot. to Exclude [Docket No. 92] 5; Hallman Aff. Ex. 2 (“Hallman Supp. Report”), at 6. Put plainly, Hallman’s opinions address Trek’s legal duty to warn, and must thus be excluded.

3. Opinions Regarding Bicycle [*48] Mechanics and Sanny’s Accident

Although the above expert opinion testimony previously discussed will be excluded, Hallman does have admissible testimony which may aid the jury. Hallman’s analysis of how quick release devices function, and their potential for wheel detachment without secondary retention devices, are based on mechanical principles within Hallman’s expertise and derived from both Hallman’s and Trek’s own tests. Also, testimony derived from Hallman’s study of Sanny’s bicycle is based on the close analysis of metal deterioration and usage marks, and is within Hallman’s expertise as a materials and mechanics engineer. Although Hallman’s primary expertise centers on automobile accidents, many of the same reconstruction principles could arguably apply here. Because Trek offers no specific argument against these opinions, and because the opinions may aid the jury, these opinions will not be excluded at this stage. 8

8 Trek focused on the wholesale exclusion of Hallman’s testimony, and did not make specific arguments as to each of Hallman’s opinions. The admissibility of opinions not excluded here may be addressed by the parties at or before trial.

IV. CONCLUSION

Based on the foregoing, [*49] and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Trek’s Motion for Summary Judgment [Docket No. 77] is GRANTED IN PART and DENIED IN PART.

2. Trek’s Motion to Strike Changes to the Deposition of Plaintiffs’ Expert David Hallman [Docket No. 70] is GRANTED.

3. Trek’s Motion to Exclude Testimony of Plaintiffs’ Expert [Docket No. 76] is GRANTED IN PART and DENIED IN PART; the testimony of David Hallman is limited as set forth above.

BY THE COURT:

/s/ Ann D. Montgomery

ANN D. MONTGOMERY

U.S. DISTRICT JUDGE

Dated: May 8, 2013.

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Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

A judge that works hard to find problems does not help.

This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.

The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.

Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:

I.                  Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;

II.               Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;

III.           Defendant created a dangerous condition by making artificial snow; and

IV.            IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.

The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.

Summary of the court’s analysis

The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:

·        Trespasser

·        Invitee

·        Business Invitee

Here, the injured skiers were either “invitees” or “business invitees.”

An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.

The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.

·        Express

·        Implied

·        Primary

·        Implied Secondary

Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.

The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.

Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.

Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…

The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.

The court found, even though the release used the term negligence, it was not enough.

In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!

In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”

The court held the word negligence in this release was too broad and covered claims that could not be released.

The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”

The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.

The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”

The court then went back to the assumption of the risk discussion.

Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.

Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.

…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.

The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”

The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.

The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.

So Now What?

The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.

1.      Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.

2.    Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.

3.    No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.

4.    If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)

5.     If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.

And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.

Plaintiff: Lesa Moffatt and Carrie Lewis

 

Defendant: Snow Creek, Inc.

 

Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence

 

Defendant Defenses: Assumption of the Risk

 

Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.

 What do you think? Leave a comment.

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Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

Carrie Lewis, Lesa Moffatt, Appellants, v. Snow Creek, Inc., Respondent.

WD 55070

COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT

6 S.W.3d 388; 1999 Mo. App. LEXIS 421

March 31, 1999, Opinion Filed

SUBSEQUENT HISTORY: [**1] Respondent’s Motion for Rehearing and/or Transfer to Supreme Court Passed June 1, 1999. Respondent’s Motion for Rehearing and/or Transfer to the Supreme Court Denied July 27, 1999. Opinion Readopted and Mandate Issued January 6, 2000, Reported at: 2000 Mo. App LEXIS 7.

PRIOR HISTORY: Appeal from the Circuit Court of Platte County, Missouri. The Honorable Ward B. Stuckey, Judge.

DISPOSITION: Affirmed in part and reversed in part.

COUNSEL: Fritz Edmunds, Jr., Overland Park, KS, for Appellants.

Thomas Magee, St. Louis, MO, for Respondent.

JUDGES: Albert A. Riederer Judge. Lowenstein and Stith, JJ., concur.

OPINION BY: ALBERT A. RIEDERER

OPINION

[*391] This is an appeal from summary judgments granted in each of two separate suits filed by two different plaintiffs making identical claims against Respondent. Pursuant to a motion filed by Appellants and Respondent, the cases have been consolidated on appeal. Because we find that there is disputed evidence regarding both Respondent’s liability as a possessor of land and Appellant’s implied assumption of the risk, and because we find that express assumption of the risk did not apply under the facts in this record, we reverse on those issues. However, because there is no disputed evidence regarding count III of the petitions, and because Respondent is entitled to judgment as a matter of law on that count, we affirm as to that count.

Factual and Procedural Background

On January 8, 1995, Appellant Lesa Moffatt rented skis at Snow [**2] Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” On January 21, 1995, Appellant Carrie Lewis rented skis at Snow Creek Ski Area and signed a “Snow Creek Ski Area Rental Form.” The form states in pertinent part:

10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.

This document was signed by both Lewis and Moffatt during the process of renting equipment. Lewis and Moffatt both stood in line with people in front of and behind them when they received this form. The form had to be completed before obtaining skis and equipment. Both Lewis and Moffatt claim that they felt pressured to move along and did not have an adequate opportunity to read and fully comprehend the rental form.

Lewis [**3] and Moffatt both fell on ice at Snow Creek and were injured. Lewis and Moffatt each filed a separate petition against Respondent which included the same four counts: I. Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred; II. Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to properly release when plaintiff fell, injuring plaintiff’s leg; III. Defendant created a dangerous condition by making artificial snow; and IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises. Respondent generally [*392] denied Appellant’s claims in its answer and asserted affirmative defenses of comparative fault and assumption of the risk.

Respondent filed a motion for summary judgment in each case. Respondent submitted as evidence the “Snow Creek Ski Area Rental Form” and the deposition of the plaintiff in each case. In response to Respondent’s motions for summary judgment, each Appellant submitted additional evidence in the form of her own affidavit. Both motions for summary judgment were granted. Lewis’ and Moffatt’s [**4] claims are identical, and they have been consolidated on appeal.

Standard of Review

[HN1] Our standard of review of a summary judgment is essentially de novo. Lawrence v. Bainbridge Apartments, 957 S.W.2d 400, 403 (Mo. App. 1997) (citing, ITT Commercial Finance Corp., v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We review the record in the light most favorable to the party against whom judgment was entered and grant the non-moving party the benefit of all reasonable inferences from the record. Id. [HN2] To be entitled to summary judgment a movant must demonstrate that there is no genuine dispute of material fact and that he or she is entitled to judgment as a matter of law. Id.

In accordance with the law, we analyze whether summary judgment is appropriate on the record developed by the parties and presented to this court. The Respondent advances several arguments why summary judgment is appropriate. First, it claims as a possessor of land, it has no duty to warn a business invitee of dangers which are open and obvious as a matter of law and that the ice alleged to have caused the fall and injury was [**5] open and obvious as a matter of law. Second, it claims Appellants expressly assumed the risk of this injury by signing the Rental Form. Third, it claims Appellants impliedly assumed the risk of this injury by engaging in the sport of skiing. Fourth, it claims the Rental Form operates as a release.

I. Duty of the Possessor of Land

Respondent claims that the presence of ice on a ski slope should be determined to be an open and obvious danger as a matter of law.

A. Duty Owed To A Business Invitee

” [HN3] The standard of care owed by a possessor of land is dependent upon the status of the injured party.” Peterson v. Summit Fitness, Inc., 920 S.W.2d 928, 932 (Mo. App. 1996). An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Harris v. Niehaus, 857 S.W.2d 222, 225 (Mo. banc 1993) (quoting, Restatement (Second) of Torts, § 332 (1965). As [HN4] business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. Peterson, 920 S.W.2d at 932. A possessor of land is [**6] liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Id. Generally, [HN5] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Id. at 933. “The exception to this rule is where ‘the possessor should anticipate the harm despite such knowledge or obviousness.'” Id. A condition is open and obvious if invitees should reasonably be expected to discover it. Id.

Given the preceding principles, the pivotal question is whether the ice was an open and obvious condition on the land [*393] as a matter of law. If we determine the ice was an open and obvious condition on the land as a matter of law, Respondent as possessor has no liability – unless he should anticipate the harm despite such knowledge or obviousness. Id. [**7] Thus, the next question would be whether Respondent could reasonably rely on its invitees – skiers – to protect themselves from the danger of ice or whether Respondent should have expected that skiers would not appreciate the danger thus posed. Harris, 857 S.W.2d at 226. We need not reach the second question because this court is unwilling, under the facts as developed in this case, to declare that the conditions on Respondent’s property, which allegedly caused the fall, were open and obvious as a matter of law. To the contrary, we find there is a genuine dispute regarding a material fact: the nature and character of the ice alleged to have caused the fall. “For purposes of Rule 74.04, [HN6] a ‘genuine issue’ exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” ITT, 854 S.W.2d at 382. “A ‘genuine issue’ is a dispute that is real, not merely argumentative, imaginary or frivolous.” Id. In this case, Appellants characterized the ice as large areas of thick impenetrable ice hidden under a dusting of snow. The evidence is that the Appellants fell on ice which they did not see because [**8] of the snow. Respondent maintained that both Appellants encountered ice on trails that the Appellants had been down several times before they fell. This is not sufficient evidence for this court to find that the ice Appellants encountered was an open and obvious danger as a matter of law. It is not clear that the Appellants should have reasonably been expected to have discovered the icy condition. Peterson, 920 S.W.2d at 933. ” [HN7] When there is disputed evidence – as in this case – on whether the landowner had reason to expect this type of accident . . ., the case properly belongs to the jury.” Harris, 857 S.W.2d at 229. Therefore, we find that Respondent was not entitled to summary judgment because there is a genuine issue regarding the ice, and the ice in question was not an open and obvious danger as a matter of law.

II. Assumption of Risk

Appellants claim that the trial court erred in granting summary judgment because the defense of assumption of the risk requires a jury determination as to disputed material facts. Specifically, Appellants claim that a jury should decide whether they knew of the ice and whether they understood and appreciated the [**9] danger posed by the ice. Respondent claims that the Appellants’ injuries were the result of a risk inherent in the sport of skiing, and therefore, the Appellants assumed the risk, or in the alternative, that Appellants expressly assumed the risk by signing the rental form. [HN8] Assumption of risk is generally categorized as express, implied primary, and implied secondary (reasonable and unreasonable). Sheppard v. Midway R-1 School District, 904 S.W.2d 257, 261-62 (Mo. App. 1995).

A. Express Assumption of Risk

[HN9] Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Id. Recovery is completely barred since there is no duty in the first place. Id. Respondent argues that the Rental Form, signed by both Appellants, specifically mentioned the snow. Respondent correctly argues that the Rental Form relieves it of liability for injury due to snow. The evidence is that the Appellants knew about the snow and voluntarily assumed that risk. However, we cannot agree that the Rental Form relieves Respondent from injury liability due to ice. First, the Rental Form did not mention injury due to ice. [**10] In addition, the Rental Form could only relieve Respondent of such liability if the general reference to “negligence” is sufficient to do so. The clause of the Rental Form reads as follows:

[*394] 10. I hereby release from any legal liability the ski area and its owners, agents and employees, as well as the manufacturers and distributors of this equipment from any and all liability for damage and injury or death to myself or to any person or property resulting from the selection, installation, maintenance, adjustment or use of this equipment and for any claim based upon negligence, breach of warranty, contract or other legal theory, accepting myself the full responsibility for any and all such damage, injury or death which may result.

” [HN10] Although exculpatory clauses in contracts releasing an individual from his or her own future negligence are disfavored, they are not prohibited as against public policy.” Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330, 334 (Mo. 1996). “However, contracts exonerating a party from acts of future negligence are to be ‘strictly construed against the party claiming the benefit of the contract, and clear and explicit language [**11] in the contract is required to absolve a person from such liability.'” Id. (quoting, Hornbeck v. All American Indoor Sports, Inc., 898 S.W.2d 717, 721 (Mo. App. 1995)).

“Historically, [HN11] Missouri appellate courts have required that a release from one’s own future negligence be explicitly stated.” 923 S.W.2d at 336 (emphasis in original). The Court in Alack determined that the best approach was to follow precedent and decisions from our state as well as others and to require [HN12] clear, unambiguous, unmistakable, and conspicuous language in order to release a party from his or her own future negligence. 923 S.W.2d at 337. The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. Id. General language will not suffice. Id. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Id. [HN13] Whether a contract is ambiguous is a question of law to be decided by the court. Id. “An ambiguity arises when there is [**12] duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.” Id.

Respondent’s exculpatory clause uses the term “negligence.” However, that does not end our inquiry. We must determine whether the exculpatory clause uses “clear, unmistakable, unambiguous and conspicuous language.” Id. The exculpatory clause purports to shield Respondent from “any claim based on negligence and . . . any claim based upon . . . other legal theory. . . .” Alack teaches us that “there is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.” Id. Respondent argues that the language from paragraph 8 of the rental form “does not purport to release defendant from liability for intentional torts, gross negligence, or activities involving the public interest ” and that use of the word “negligence” results in a clear understanding of the acts for which liability is released. We disagree. The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, [**13] gross negligence or any other cause of action not expressly listed. ” [HN14] A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.” Id. Here, the Rental Form purports to relieve Respondent of all liability but does not do so. Thus, it is duplicitous, indistinct and uncertain, Id., and thence arises an ambiguity. Rodriguez v. General Accident, 808 S.W.2d 379, 382 (Mo. banc 1991).

In addition, the exculpatory language and its format did not effectively notify the Appellants that they were releasing Respondent from claims arising from its negligence. The form the Appellants signed was entitled “Snow Creek Ski Area Rental Form.” It did not indicate it [*395] was a release. This title was in large type and could not be reasonably construed to include release of liability. By contrast, the exculpatory clause is in approximately 5 point type at the bottom of the form. “[ [HN15] A] provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Alack, 923 S.W.2d at 335. The Appellants had to sign [**14] the Rental Form to receive ski equipment and had to do so while in a line. The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving. Id. at 337-38. The language drafted by Respondent is not “unambiguous” or “conspicuous,” and thus does not meet the standard of Alack. Id.

Thus, Respondent cannot rely on that language to claim the Appellants expressly assumed the risk of the injury complained of in the petition.

B. Implied Assumption of Risk

[HN16] Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. Sheppard, 904 S.W.2d at 261. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks. Id. The plaintiff’s consent is implied from the act of electing to participate in the activity. Id. Implied primary assumption of the risk is also a complete bar [**15] to recovery. Id. at 262. On the other hand, [HN17] implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. Id. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. Id. If the plaintiff’s action is reasonable, he is not barred from recovery. Id. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. Id. This case involves implied primary assumption of the risk.

Appellants claim the trial court erred when it ruled, “the court finds that the Plaintiff assumed the risk of injury by skiing on the Defendant’s ski slope and that Plaintiff’s injuries were of a type inherent to the sport of skiing and that this incident involves dangers so obvious that the Defendant does not owe a duty to the Plaintiff and therefore is not required to warn the Plaintiff of such danger.” Respondent argues that the Appellants are barred by [**16] implied primary assumption of risk because by engaging in the sport of skiing, they impliedly assumed the risk of falling on the ice.

“Generally, [HN18] assumption of risk in the sports context involves primary assumption of risk because the plaintiff has assumed certain risks inherent in the sport or activity.” Id.

[HN19] Under comparative fault, if the plaintiff’s injury is the result of a risk inherent in the sport in which he was participating, the defendant is relieved from liability on the grounds that by participating in the sport, the plaintiff assumed the risk and the defendant never owed the plaintiff a duty to protect him from that risk. If, on the other hand, the plaintiff’s injury is the result of negligence on the part of the defendant, the issue regarding the plaintiff’s assumption of that risk and whether it was a reasonable assumption of risk, is an element of fault to be compared to the defendant’s negligence by the jury.

Id. at 263-64. [HN20] The basis of implied primary assumption of risk is the plaintiff’s consent to accept the risk. Id. “If the risks of the activity are perfectly obvious or fully comprehended, plaintiff has consented to [**17] them and defendant has performed [*396] his or her duty.” Martin v. Buzan, 857 S.W.2d 366, 369 (Mo. App. 1993).

[HN21] As a “defending party,” Respondent may establish a right to summary judgment by showing that there is no genuine dispute as to the existence of each of the facts necessary to support its properly pleaded affirmative defense and that those factors show Respondent is entitled to judgment as a matter of law. ITT, 854 S.W.2d at 381. In order for Respondent to have established its right to summary judgment based upon implied primary assumption of the risk, Respondent had to show that there was no genuine dispute that the Appellants’ injuries were the result of falling on ice, and that ice was a risk inherent in the sport of skiing. While there is no question that the Appellants’ injuries were a result of falling on ice, there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing. Respondent notes that many states including Colorado, Idaho, Maine, Michigan, Montana, New Hampshire, New Jersey, New Mexico, Ohio, and West Virginia have all enacted statutes which codify assumption of the risk as is pertains to the sport [**18] of snow skiing. However, there is no such statute in Missouri, and this court is not willing to say, as a blanket rule, that all ice encountered on Respondent’s property is an inherent risk in the sport of snow skiing. There is a genuine dispute as to the nature of the ice. Was it “large areas of thick impenetrable ice hidden under a dusting of snow on the ski slopes,” as the Appellants claim, or was it ice on the slopes that the Appellants had been over several times prior to falling. These are questions which must be answered by a fact-finder. [HN22] While the basis of implied primary assumption of the risk is the plaintiff’s consent to accept the risk, the plaintiff must be aware of the facts that create the danger and they must appreciate the danger itself. Shepard, 904 S.W.2d at 264. Thus, the standard is a subjective one: “what the particular plaintiff in fact sees, knows, understands and appreciates.” Id. Here, the record does not include evidence that the Appellants were aware of the facts that created the danger or that they appreciated the danger itself. In fact, there was only evidence to the contrary, that the Appellants did not know, understand or appreciate [**19] the ice because it was under snow.

Therefore, we find that summary judgment cannot, on this record, be based upon express or implied primary assumption of the risk.

III. Release

Respondent argues on appeal that the “Rental Form” operated as a release. Respondent did not plead release as an affirmative defense in its answer. [HN23] Release is an affirmative defense that must be pleaded in an answer. Rule 55.08. Failure to plead an affirmative defense constitutes a waiver of the defense. Leo’s Enterprises, Inc. v. Hollrah, 805 S.W.2d 739, 740 (Mo. App. 1991). Since Respondent did not plead the affirmative defense of release, summary judgment would not be proper based upon the theory of release.

Artificial Snow

We affirm the trial court’s grant of summary judgment on Count III of the Appellants’ petitions. The Appellants state in Count III of their petitions that Respondent created a dangerous condition by making artificial snow and dispersing it on the ski slope and that Respondent owed a duty to them as business invitees not to create dangerous conditions on the premises. The trial court was correct in granting Respondent’s summary judgment [**20] on Count III, because [HN24] a possessor of land does not have a duty to protect invitees against conditions that are open and obvious as a matter of law. Peterson, 920 S.W.2d at 933. A condition is open and obvious if invitees should reasonably be expected to discover it. Id. Respondent could be liable only if it was not reasonable [*397] for it to expect the Appellants to see and appreciate the risk and to take reasonable precautions. Harris, 857 S.W.2d at 226. Artificial snow at Snow Creek is an open and obvious condition, and it is reasonable for Respondent to expect the Appellants to see and appreciate the risk of artificial snow and to take appropriate precautions.

Conclusion

The judgment of the trial court is affirmed as to Count III of each of the petitions. It is reversed and remanded for further proceedings on counts I, II, & IV.

Albert A. Riederer, Judge

Lowenstein and Stith, JJ., concur.

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

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