Category Archives: Sports Injuries

Life after Death: Superior Court Rules Waivers Do Not Apply to Wrongful Death Actions (PA)

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A recent decision from the Pennsylvania Superior Court revived a wrongful death action previously dismissed on the basis of a waiver of liability, holding instead that such waivers do not apply to surviving spouses under the applicable statutory regime.

In Valentino v. Philadelphia Triathlon, the decedent participated in a June 2010 triathlon hosted by defendant Philadelphia Triathlon and conducted, in part, along the Schuylkill River.  As part of his participation in the triathlon, the decedent was required to preregister for the event and execute a waiver and release form absolving Philadelphia Triathlon from any liability arising out of death or bodily injury.  Unfortunately, during the course of the swimming portion of the triathlon, the decedent drowned in the Schuylkill River where his body was ultimately recovered the next day.

In or about April 2012, the decedent’s widow filed a wrongful death and survival action naming, among others, Philadelphia Triathlon as a defendant.  While preliminary objections removed all defendants but Philadelphia Triathlon from the case, the trial court eventually granted summary judgment in its favor on the basis that the waiver and release form barred the widow’s action in its entirety.

On appeal, the widow argued that the trial court improperly sustained preliminary objections and wrongfully granted summary judgment.  In respect of the latter alleged error, the widow argued in part that summary judgment was inappropriate on the basis of the waiver and release form because Pennsylvania law does not apply the limitations therein to third-parties suing under the Commonwealth’s wrongful death statute.  In ultimately adopting this reasoning, the Superior Court explained that because Pennsylvania’s cause of action for wrongful death is statutory, it belongs exclusively to the beneficiary and is not derivative of the decedent’s own claims.  Moreover, inasmuch as the wrongful death claims are not “passed on” by the decedent, the Superior Court went on to state that any waivers or limitations executed by the decedent in respect of his own claims during life did not inure to the detriment of widows or other beneficiaries attempting to enforce their own causes of action.  Consequently, the Superior Court overturned the trial court’s summary judgment order and remanded for further proceedings.

The Superior Court’s decision in Valentino reaffirms and highlights subtle distinctions between Pennsylvania’s wrongful death and survival statutes insofar as the former allows beneficiaries to recover their own damages because of the loss of a loved one and the latter merely preserves the decedent’s own right to recovery.   Thanks to Adam Gomez for his contribution to this post.  Please email Brian Gibbons with any questions.

Go-Cart Release Bounced by PA Court

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The issue of waiver and releases for recreational activities was recently at issue in Weinrich v. Lehigh Valley Grand Prix Inc., Weinrich was completing his third lap at the Lehigh Valley Grand Prix go-cart track, when he passed by a protruding piece of plastic that had come loose from the track’s guard rail and was sticking out into the path of the track. Weinrich struck the piece of plastic with his go-cart, causing the plastic to whip back and strike him in the leg, leaving him with a two-inch laceration on his leg. Weinrich sued the track because of his injuries.

During depositions it was established that Weinrich previously patronized the facility, approximately six months before his accident. At that time, Weinrich signed a waiver of liability before being permitted to use the track. On the date of his accident, Weinrich was not required to sign a waiver, as it was the facility’s policy to permit repeat customers to use the track if they already had a waiver on file.

Pennsylvania courts strictly construe and disfavor waivers of liability as a matter of public policy but nonetheless uphold such waivers when three requirements are met: (1) the waiver must not infringe on public policy; (2) the agreement must be between persons relating to their own individual actions and affairs; and (3) the agreement must not be a “contract of adhesion,” meaning that each party must have free bargaining abilities.

Further, when it comes to recreational activities and facilities, these waivers are generally upheld as they do not interfere with public policy, absent reckless or grossly negligent behavior, and the patrons are usually free to decide that they would rather not partake in the activity.

Here, the defendant moved for summary judgment arguing that the waiver precluded plaintiff’s lawsuit.  But the waiver at issue was silent as to the duration of applicability. Applying traditional contract-interpretation principles, the court explained that when a contract is silent as to duration, Pennsylvania courts must infer that the parties intended that terms of the contract be completed within a reasonable amount of time. The court  denied defendant’s motion for summary judgment, stating that what constitutes a reasonable amount of time is an appropriate question to be decided by the jury. Had the waiver simply stated that such waiver was “valid now and for any and all future use of the facility,” defendant’s motion for summary judgment would likely have been successful.

Thanks to Jim Stinsman for his contribution to this post and please write to Mike Bono for more information.

Riding in a Golf Cart (On A Golf Course) Is At Your Own Risk (NY)

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In Valverde v. Great Expectations, during a fund raising event, plaintiff, an employee of the Andrew Glover youth program was injured while a passenger in a golf cart driven by defendant, a participant in the program.  Defendant, age 17 and unlicensed, was driving plaintiff from the clubhouse to the course where she was assigned to monitor a par-three hole for any player that got a hole in one. Defendant did not believe the golf cart was properly functioning and decided to return to the clubhouse to get a new cart. While driving back, the golf cart picked up speed and plaintiff asked defendant to slow down. Defendant made a sharp left turn and plaintiff flew out of the cart.

The Supreme Court denied defendant’s motion for summary judgment and the First Department reversed dismissing the complaint. The Court held that defendant was entitled to summary judgment based on a theory of assumption of risk. A plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks inherent to and arising out of the sport. The Court held that golfers appreciate the risk of injury from improperly used golf carts on a fairway. Plaintiff knowingly and voluntarily rode in the golf cart operated by defendant. Even though plaintiff was not actively performing her duties at the time of the accident, the Court held that that does not negate assumption of risk, as the doctrine applies to any facet of the activity inherent in it. Here, that includes riding in a golf cart in the designated recreational venue.

If you decide to take a ride in a golf cart from an unlicensed 17 year old on a golf course, it is at your own risk.  Thanks to Anne Henry for her contribution.  Please email Brian Gibbons with any questions.

Softball Player Does Not Assume the Risk of an Uneven Field (NY)

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Usually in sports, the term “level playing field” is a metaphor for fairness amongst competitors.  However, in Brown v. Roosevelt Union Free School Dist., the Court examined the literal implications of an uneven playing filed.  The infant plaintiff was injured while participating in an infield sliding drill during softball practice on a grass field at an elementary school in Uniondale.  Infant plaintiff typically practiced sliding drills on a dirt infield at a field at Roosevelt Middle School, however, it was being renovated.  The team had never before used the field in Uniondale, it had not been inspected beforehand, and was uneven and grassy.

Both school districts moved for summary judgment denying any liability on an assumption of risk theory.  The Supreme Court denied both motions, and the Second Department affirmed. While a voluntary participant in a sports activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally, awareness of risks is assessed against the background of the skill and experience of the particular plaintiff.  Here, the infant plaintiff had never performed such drills on grass and never before on an uneven terrain.  The Court held that defendants failed to establish that the infant’s coach did not unreasonably increase the inherent risks of the activity by having her perform an infield sliding drill on the subject grass field.

The Court focused on the field at issue, more than the infant plaintiff’s experience.  The field was uneven and grassy, and therefore, the Court held that it unreasonably increased the risk inherent in the game of softball.

This decision may seem particularly surprising to anyone who grew up in New York City, where broken glass on baseball diamonds were considered a part of the field.  In any event, this decision is indicative of the limitations of the assumption of the risk doctrine, particularly where youth sports are involved.  Thanks to Anne henry for her contribution.  Please email Brian Gibbons with any questions.

New York Court Bucks Horse Riding Lesson Claims

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In New York, a voluntary participant in a sporting or recreational activity assumes the risks inherent with such activity, and the assumption of risk doctrine will apply as an absolute bar to liability where the participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. This doctrine has been applied to a variety of fact patterns over the years by New York courts.

In the recent case of Quintanilla v. Thomas School of Horsemanship,  the plaintiff was taking an intermediate horse riding lesson at the defendant’s facility with four other students. As the lesson was ending, two of the horses came in close proximity to one another, causing one horse to kick a wooden fence or gate and creating a loud noise. Plaintiffs alleged that the noise “spooked” the horse that the plaintiff was riding, causing it to rear or buck, and the plaintiff to fall off the horse.

The plaintiff had been riding horses for two to three years. Before the plaintiff participated in the lesson, the plaintiff’s parents signed a “Camp and Riding Instruction Agreement and Liability Release” which warned that the school’s horses, if frightened or provoked, may stop short, change direction or speed at will, buck, rear, kick, or run from danger. The defendant moved for summary judgment, arguing plaintiffs’ action was barred by the assumption of the risk doctrine. The trial court denied the defendant’s motion for summary judgment, holding that there was a question of fact as to whether the plaintiff’s claims were barred by the doctrine of assumption of the risk.

The Appellate Division, Second Department reversed the trial court’s denial of summary judgment and found that the doctrine of primary assumption of the risk did apply.   The appellate court found that the risks of falling from a horse or a horse acting in an unintended manner are risks inherent in the sport of horseback riding.  The court determined that defendants had demonstrated that the plaintiff assumed the risks inherent in riding a horse, including falling when the horse acted in an unintended manner when spooked by a noise caused by another horse. Plaintiffs failed to raise a triable issue of fact in opposition.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.

What happens in Pennsylvania stays in Pennsylvania

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In McDonald v. Whitewater Challengers, Erin McDonald, a New York teacher, signed a release form to participate in a whitewater rafting school field trip conducted by Whitewater Challengers, a Pennsylvania company. Upon participation, Ms. McDonald was thrown from the raft and injured. Ms. McDonald sought to invalidate the signed liability release form by applying to New York law.

In New York, release forms immunizing recreational facilities from liability for negligence are invalid by statute, as they violate New York’s public policy. In Pennsylvania, however, such forms are permitted for the protection of the company where a participant agrees the sign a waiver and assuming the risk of the activity.

The Pennsylvania Superior Court acknowledged that New York may have an interest in recouping the costs of Ms. McDonald’s medical treatment. However, the Superior Court ultimately decided that Pennsylvania has the greater interest because a Pennsylvania company should be able to rely on Pennsylvania laws when conducting its operations.

We suspect plaintiff would have preferred to bring her claim in New York, as opposed to Pennsylvania, to take advantage of New York’s more plaintiff-friendly laws.  Unfortunately for plaintiff, the contract she signed also mandates that “Any claims or disputes arising from my participation in this program shall be venued in the Luzerne County Court in the town of Wilkes-Barre, PA, or in the Supreme Court of the State of Pennsylvania.”

Thanks to Tiffany Davis for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Youth League Wrestles out of Lack of Supervision Claim (NY)

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Lack of adequate supervision is a common claim for youth sport injury claims.  A defense to such a claim may be that the accident occurred in such a short span of time that even the most intense supervision could not have prevented it from occurring.  Under those circumstances, the lack of supervision is not the proximate cause of the injury and a defendant charged with the duty of reasonable supervision is entitled to summary judgment in its favor.

In Cvijenovich v. Beacon Kids Wrestling Club, a 13-year-old was injured in a wrestling tournament. Plaintiff alleged that the child allegedly sustained injuries when his opponent performed “an illegal or unreasonably dangerous wrestling move.”  Immediately following the alleged illegal wrestling move, the referee, an experienced high school wrestler, disqualified the opponent. The plaintiff alleged, among other things, that the defendants were negligent in failing to provide adequately trained or certified referees to provide proper supervision of the match, resulting in the infant plaintiff’s injuries.

The wrestling club moved for summary judgment, arguing that they could not be held liable for the infant plaintiff’s injuries as the injury had occurred in such a short time period as even the most intense supervision could not have prevented the body slam.  The trial court denied the wrestling club’s motion, and the club appealed.

The Appellate Division, Second Department found that the wrestling club had established through the plaintiff’s child’s deposition transcript and a videotape of the wrestling match that the allegedly illegal wrestling move occurred so quickly that a claimed lack of adequate supervision could not be the proximate cause of the child’s injuries.  The Court thus reversed the trial court’s decision and awarded summary judgment in favor of the wrestling club.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.

Court Puts Hockey Player’s Locker Room Injury on Ice (NY)

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In New York,  a voluntary participant in a recreational activity assumes the risks inherent with such activity, and the assumption of risk doctrine will apply as an absolute bar to liability where the participant is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risk. In addition, courts will grant judgment in favor of the defendant where the alleged injuries arise out of the inherent risks associated with that activity.

In the case of Litz v. Clinton Central School District,  plaintiff, a high school student, was in the locker room following hockey practice. Plaintiff was walking barefoot toward the shower area when one of his teammates stepped backwards onto his right foot. Plaintiff’s teammate was still wearing his hockey skates at the time of the accident. Plaintiff sued the school district, the coaches and his teammate, and the defendants moved for summary judgment alleging that plaintiff had voluntarily assumed the risks associated with the sport of hockey. The trial court awarded summary judgment in the defendants’ favor and plaintiff appealed.

Plaintiff appealed, arguing that the assumption of the risk did not apply because he was no longer playing hockey at the time of his injury. The Appellate Division, Fourth Department,  noted that the accident occurred at the facility where hockey practice took place and immediately following practice. The players all used the locker-room where the accident occurred to store their equipment including the skates. Plaintiff testified that he always walked around the locker room with bare feet when he did not have his skates on, and he acknowledged that he was “aware of the need to be careful walking with people still having skates on in the locker room.”

Based upon those facts, the Court concluded that plaintiff was still “involved” or “participating” in the sport of hockey at the time of his injury and that the assumption of risk doctrine applies to any facet of the inherent activity. The Fourth Department also determined that the defendants met their burden of establishing that the risk of being injured by a skate blade is “inherent in the sport” of hockey and that the plaintiff was aware of, appreciated the nature of, and voluntarily assumed that risk.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.

Martial Arts Participant Did Not Sign On For Ultimate Fighter Move (NY)

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When a person voluntarily participates in a sporting event that carries inherent risks, essentially she consents to exposure to those risks thereby eliminating the duty that might otherwise be owed by the person sponsoring the event.  However, the risk must be appreciated by the participant.  In other words, the risk cannot be concealed or unreasonably increased.

The plaintiff in Pierre v. Ramapo Central School District sued to recover personal injury damages after being injured while competing in her high school’s self-defense tournament.  Defendant moved for summary judgment based on the doctrine of primary assumption of risk, arguing that plaintiff consented to the risk associated with the move that injured her when she voluntarily participated in the tournament.  The Court denied the motion, finding that defendant’s own evidence demonstrated that the risk associated with the move that injured the plaintiff was concealed and unreasonably increased. 

 The specific move itself was popularized by the Ultimate Fighter Championship (UFC), a mixed martial arts competition.  The teacher of the self-defense class, who was also the referee at the tournament, testified that he had neither extensive training nor certification in any of the various mixed martial arts whose moves were incorporated into his class.  The teacher further testified that although he had not taught the UFC move, he was aware that it was being used by students during class.  Defendant also submitted a recording of the tournament bout wherein the teacher observed plaintiff’s opponent using the move, but did not stop the bout or warn the opponent against using the move again.  Plaintiff was injured when her opponent used the move a second time.

 The Court held that under these circumstances, the risk of injury was not assumed by plaintiff, and defendant could not be relieved of its legal duty of care to her.     

Thanks to Sheree Fitzgerald for her contribution.

For more information, contact Denise Fontana Ricci at . 

 

 

The Mets Finally Catch a Break in Foul Ball Case (NY)

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Under New York law, a baseball stadium is only required to provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest. If the screening is sufficient to provide adequate protection for “as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game,” the the duty of care is fulfilled and there is no negligence.

In Vincent Tarantino v. Queens Ballpark Company, LLC, the plaintiff claims he was injured when he was struck by a foul ball during a New York Mets baseball game at Citi Field. Plaintiff alleged that he was seated at a table inside a luxury suite on the “Empire Level” of the baseball stadium “located behind home plate” with the windows open at the time of the incident. He sued a number of parties, alleging that his injuries were caused by their negligence with respect to the design, construction, operation, maintenance, management, control, and supervision of the stadium. The defendants moved to dismiss, which was granted by the trial court.

On appeal, the Second Department noted that the plaintiff did not allege that he was seated at field level or in the area of the field behind home plate when he was struck, or that the defendants failed to provide sufficient screening for that area.  As such, the trial court’s decision was affirmed and the case was dismissed.

Thanks to Jorgelina Foglietta for her contribution to this post, and please write to Mike Bono for more information.