July 6th, 2016

What Risks Have You Assumed?


Franz Klammer was not involved in this incident, but he makes for great art work for the blog.

An interesting case yesterday out of New York’s Appellate Division, involving a skier that crashed into a snowboarder at the base of the bunny hill, badly injuring the boarder.

Most lawyers wouldn’t take such a case due to the assumption of risk doctrine.  I’ve discussed that before, as it often provides immunity to the one that caused the injury. Assumption of risk, as I described previously regarding an injured softball player, provides that:

a voluntary participant in a sporting or recreational activity  consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

So wouldn’t that apply to a skier that clobbered another?  The defendant in Horowitz v. Chen moved for summary judgment on that basis.

Not so fast, said the appellate court. The defendant, it seems, was moving at 20 to 30 kilometers per hour (yes, that is the way it is written), and the plaintiff was standing in a crowd at the bottom of the beginners’ slope.

While participants in sporting activities may consent to the commonly appreciated risks inherent in a sport, the court said that doesn’t mean that they consent to “conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk.”

The court noted that this occurred in or near a marked safety zone, and that the defendant skier was zipping along in this area despite “his awareness of his limited abilities to safely handle such speed under the snow surface conditions presented.”

The court also noted the extent of the injuries (not described in the opinion), writing that “in view of the significant injuries sustained by plaintiff, reasonable inferences may be drawn that she endured a violent collision, which raises an issue as to whether the speed at which defendant was skiing was reckless under the circumstances.”

Now the important part, for New York practitioners. This case came out of New York’s First Department. (NY has four, for you out-of-towners, the First covers Manhattan and the Bronx.) In rendering its decision, the court cited to two other cases, one in the Third and one in the Fourth.

So this represents a little new ground on the subject area of assumption of risk. If conduct is “so negligent as to create an unreasonably increased risk” then the assumption of risk doctrine can be overcome, at least for the purposes of surviving summary judgment.

And last, just because I feel like it, the legendary 1976 Olympic downhill run of Franz Klammer:


April 13th, 2016

Let’s Go for a Horsie Ride…(And Fall Off)

Ridin-Hy promo image from its website

Ridin-Hy promo image from its website

Today we go horseback riding at the Ridin-Hy Resort. So put on your cowboy boots and climb into the saddle at my little stable.

Wait! Is the saddle secure? I know, you’ve only had a grand total of 10 hours of horseback riding experience in your life, but isn’t that enough to know that the saddle may slip and you might fall to the ground?

Isn’t that what assumption or risk is all about! It’s a horse: everyone knows they kick, they toss people, sometimes folks get hurt!

You’re not going to blame me for flopping off the horsie on the beginner ride, are you?

What do you mean you want to sue me because you got hurt? So your saddle slipped. It can happen. You must have been sitting on it wrong! Here’s how our funny judge wrote about you:

As her horse again began to move forward she attempted to straighten the saddle without success and fell. It is not clear from the record in this motion in limine if the saddle came off of the horse but the plaintiff certainly did.

Huh? Whaddya mean, judge, that I can’t show the jury the release she signed!  I know, in New York we can’t get cases like this dismissed by having the participant simply sign a waiver absolving me of negligence, as that would violate the law and be against public policy.

But look, that risk was right here there in our release that you signed! OK, well maybe that particular risk isn’t really spelled out, but shouldn’t we show the release to the jury anyway so that the jury might get the gist of it? The judge summarized my argument well!

“The opposition’s novel theory is that this unenforceable agreement’s language can still be used, perhaps with redactions, to demonstrate the plaintiff’s express awareness that saddles may loosen and riders may fall…”

OK, I see judge.  You’re going to keep this release away from the jury because our injured rider was still a rookie, or at least, the jury gets to determine that:

[A]n assessment of whether a participant assumed a risk depends on the openness and obviousness of the risks, the participant’s skill and experience, as well as his or her conduct under the circumstances and the nature of the defendant’s conduct’ ” (Decision: Boland v Riding High Dude Ranch, Inc.)

So maybe next time I’ll put this into the release — that the saddle may slip — so that riders are aware of the problem and can recognize problems before they get hurt?

Perhaps I’ll get that Turkewitz fellow to write me a better release — one that isn’t just poorly designed to dissuade lawsuits and gets chucked as being against public policy — to actually educate participants in the sporting activity they are undertaking. So they are less likely to get injured to begin with.

Like he did here with his trail race, whose release and waiver he once crowd-sourced on his blog.

Because in order to assume a risk, one has to actually have an awareness that the risks exist.



January 15th, 2014

False and Misleading Headlines (Youth Baseball Edition) – Updated

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

An unhappy Brett Lawrie of the Toronto Blue Jays throws his helmet in 2013.

Headlines make a difference, as headlines can skew the viewpoint of the reader before the facts are even read in the article. That is, if the article is even read. Many folks, of course, just skim.

And so it is with KCRA in Sacramento, CA.

The headline reads:

14-year-old Little Leaguer sued by coach for celebrating win

The problem? That isn’t really why anyone was sued. An actual reading of the article reveals that the defendant, a 14-year-old, threw off his helmet as he raced home with a winning run. But the helmet hit the coach and caused a torn Achilles tendon.

The kid, in other words, wasn’t sued because for celebrating, but for causing an injury to his coach.

As per the article’s actual text:

In legal papers filed in court, the teen’s former coach, Alan Beck, contends the boy “carelessly threw a helmet, striking Plaintiff’s Achilles tendon and tearing it.”

Whether the underlying facts support the suit or not, I have no way of knowing. All we have now is a legal pleading and a short news story.

Will it be tossed out on assumption of risk grounds? Perhaps. Throwing helmets isn’t exactly part of the game, but as you can see from the graphic above of Brett Lawrie throwing his helmet in 2013, it does happen on occasion.

But one thing is clear. The headline writer didn’t accurately tell you what the story was about.

Does this matter? You bet. Because headlines like this help to shape public opinion, and that public opinion affects how potential jurors will feel about cases before a trial even starts.

(hat tip, Conrad Saam)

Update (1/16/14):  CNN now has the story, with interviews with the parents of the kid being sued, bemoaning the suit, and the coach who brought the suit discussing his Achilles injury from a 6-foot tall, 180 pound kid, and the lack of apology. CNN harps on the amount sued for: $500,000. And that makes this a good time to remember that ad damnum clauses such as this are a very bad idea. They have, thankfully, been outlawed in New York.

The coach that sued says “it’s not about the money,” but the fact that there is a number in the complaint for the media to focus on takes that issue out of his hands.

While I don’t know if this suit will survive due to assumption of risk issues — and if California law is the same as New York law I think it will get tossed — it’s clear that the CNN focus is on money instead of safety. I wrote about that recently when Red Bull was sued for $85M — where I noted that it was a very poor move to put a number in the complaint, not only because it isn’t allowed but because it shifted the focus away from product safety.



April 15th, 2013

A Football Helmet Verdict (And what does the future hold?)

riddellAs per the New York Times, football helmet maker Riddell was whacked with a $3.1M verdict for failing to warn players of the dangers of concussions. This represents 27 percent of $11.5 million in damages that were awarded to Rhett Ridolfi, who sustained a head injury and was paralyzed on the left side of his body during a football drill in 2008.

In doing so, the jury also rejected claims related to design defects in Riddell’s helmet.

Since it isn’t my favorite thing to simply re-hash news stories — you are more than capable of hitting that link and reading about the case — let me jump to the future, and that deals with the design defect that was not found.

The modern football helmet is part of the Law of Unintended Circumstances. Created to protect the head, it gave players so much confidence that they started using the head to attack with, instead of to think with.

There are thousands of other lawsuits out there from former players who have suffered brain injuries from repeatedly smashing heads with the opposition. There are plenty of parents out there watching and, I believe, pushing their athletically minded kids to other sports where brain damage isn’t as likely.

Whether these lawsuits survive or not will likely go to the issue of what was known about the dangers, when was it known, and when was the information was shared. One can only assume the risk of an activity, after all, if it is a commonly appreciated risk which is inherent in and arising out of the nature of the sport and generally and flows from such participation.

But regardless of how those suits fare, playing out concepts of a failure to warn by manufacturers and assumption of risk by players, I think the writing is on the wall for the next generation of athletes.

I think we’ll see a return to helmets with a soft exterior, to help blunt the impact of smashing heads. If the helmet loses its effectiveness as a weapon, then it won’t be used that way. The TV folks probably won’t be keen on that, since the smash of helmets is part of the audio opera of the physical contest. But the times, I think, will be a changin’, as the cost of being a gridiron warrior is simply too high.


February 26th, 2013

Daytona Crash, Spectator Injuries and Assumption of Risk

Daytona Crash

Kyle Larson’s car heads up into the fence. Photo via CNN

I was minding my own business Sunday, reading about the huge crash at the Daytona Speedway, and the dozens of people injured, when this quote jumped off the CNN page at me from one of the involved drivers, Brad Keselowski:

“As drivers, we assume the risk. But fans do not.”

Really? Don’t be so sure.

As a backdrop, you may want to look at this video shot from the stands where the debris flew through and over the retaining fence and into the crowd after Kyle Larson‘s car hit it and the front end disintegrated. A tire can be seen just one row back and three seats over from the cameraman, with at least one injured spectator on the ground and fans frantically waiving for medical assistance.

Since this crash took place in Florida, and I’m not licensed there, I’ll hit upon the issues that will be raised, leaving an ultimate determination as to how Florida law will handle the questions to others.

First, as a general proposition — and I’m using New York law here since that is what I’m familiar with but concepts will be the similar elsewhere — we look at what primary assumption of risk actually is, and how it confers complete protection against lawsuits for injuries from an event: It is:

a voluntary participant in a sporting or recreational activity  consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

Lawyers see cases like this – or at least attempts at cases like this — usually with foul balls in baseball and hockey pucks flying into the stands. It is not just the players on the field that are subject to the concept. We see it sometimes also with golf and with racing. You can read from two law review articles on the broad subject: Here and here.


Kyle Larson car on the fence. Photo credit: Associated Press/John Raoux

So here is the question: Is injury due to debris flying into the stands an obvious risk of sitting near the race track?

The answer, I think, must be yes. According to this 2002 article from the St. Petersburg Times, “Since 1990, 29 racing spectators have been killed by cars or flying parts, and another 70 have been injured.”

Those dangers are the reasons why a retaining fence has been placed at race tracks, a fence placed behind home plate for foul balls, and glass placed around the boards of hockey rinks. But still things get past, as owners of the events weigh the risks/benefits of putting these security features in place, which also happen to partially obstruct views of the event.

Some questions that the Florida lawyers will no doubt be asking:

1. Did the existence of the fence remove the obvious risk? This would be similar, I think, to a shard of broken baseball bat slipping through the fence behind home plate. Will there be different articles for small debris that flew through the fence as opposed to a tire that flew over it?

2.  If the injured spectator was a minor that was unable to appreciate the risks of car parts flying into the stands, would that youth be able to proceed?

3.  Are any of the people involved in the crash, or the makers of the car, responsible for causing the accident?

4.  Would the disclaimer on the back of the ticket serve as notice to participants that they might be injured? It is very general:

“The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.”

If this was New York, my guess is that, if push came to shove, that a potential suit against the track would fail.

Of course, not all suits fail. It is’t only the track that might be a defendant. In one Florida suit resulting from a race track accident with debris sailing over the fence:

A Citrus County man and father of three, Lake Wilson, suffered a major head injury in 1990, when the hood of a race car at Citrus County Speedway sailed over a fence and struck him full force. Wilson was in a coma for 10 months, emerging brain damaged. He won a settlement of $2.7-million — not from the speedway, but the company that distributed the pins that failed to hold the car hood in place.

If any Florida lawyers want to take a crack at this in the comments, be my guest…