LAWSUIT!™ News

Does an Open & Obvious Condition Alleviate a Duty to Warn?

T. Nelson — Fri, 11 May 2012 21:50:59 +0000

A Court of Appeals in Ohio said this week that it did. The lawsuit arose after a woman attending a water aerobics class at a local athletic club fell leaving the pool area. As she attempted to make her way around a man positioning a ladder, she fell into the kiddie pool. She sued the club for negligence.

The Court cited precedent holding a business owner is not an insurer of a customer’s safety, particularly where a hazardous condition is observable. The Court found that the kiddie pool (even with the workman and ladder present) was an open and obvious condition.

Take caution, though. Business owners owe a duty to their customers to maintain their premises in a reasonably safe condition, and that includes warning of hidden dangers.

Did you know?

Based on drawings found from 2500 BC, it’s believed swimming dates back to at least Ancient Egypt. In 1896, swimming became an Olympic sport. Initially it was a men’s only event. In 1912 women became eligible to compete. In 2008, American swimmer Michael Phelps broke an Olympic record—he was the first Olympic competitor to win 8 gold medals at a single Olympic game.

Who Has Standing to Sue if a Student is Cut From a Team?

T. Nelson — Thu, 26 Apr 2012 14:27:24 +0000

The student. A student and his parents brought several claims against a Los Angeles School District. They alleged that a coach at the student’s high school cut him from the varsity baseball team because of his animus towards Jews.

The defendant School District argued that the student’s parents had no standing to sue. A California Court of Appeals agreed.

Even though parents are personally aggrieved when their children are poorly treated, it is still only the child who has the viable cause of action. The court stated, since the coach’s behavior was directed towards the student, not the parents, at best the parents were bystanders to any discriminatory act. Their rights were not interfered with.

Did you know?

Speaking of baseball, Fenway Park is now 100 years old. It’s our oldest baseball stadium. Opening game occurred April 20, 1912, against the New York Highlanders (now known as the Yankees). Civil War, World War 1 and World War 2 veterans have watched games there.

A. Bartlett Giamatti, the former President of Yale and seventh Commissioner of Baseball once said, “As I grew up, I knew that as a building [Fenway Park] it was on the level of Mount Olympus, the Pyramid of Giza, the nation’s capital, the czar’s winter palace, and the Louvre—except, of course, that it was better than all those inconsequential places.” Read more at The Great Fenway Park Writers Series @ http://www.fenwayparkwriters.org/fenway_park_writer_quotes.asp.

Can Buying a Season Pass Release A Ski Resort From Liability?

T. Nelson — Thu, 19 Apr 2012 20:04:13 +0000

Yes. Read carefully any agreements you intend to sign.

Plaintiff suffered serious injuries snowboarding at defendant’s ski resort. Almost a year later, and after the plaintiff filed a lawsuit against the resort, he applied for a new season pass. When he applied he signed a document that included the following language:

I FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST [THE RESORT], THIS RELEASES ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE AND THOSE NOT MENTIONED IN THIS RELEASE. THIS RELEASE APPLIES TO CLAIMS RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.

It also stated–

I AM AWARE THAT THIS CONTRACT IS LEGALLY BINDING AND THAT I AM RELEASING LEGAL RIGHTS BY SIGNING IT.

A lower court dismissed the plaintiff’s complaint with prejudice. A New Jersey Appellate Court affirmed that decision finding the language in the agreement precluded the plaintiff from seeking damages from the resort. It found the plaintiff should be held to the terms of the agreement he willingly and knowingly entered.

Did you know?

Snowboarding is a relatively new sport. It’s only been around since the 1960s. Initially, snowboards were short, thin boards, that had ropes attached to their nose, and no bindings were used. Slowly the snowboard evolved, providing the athlete with more control under various conditions. Early on ski resorts didn’t permit snowboarders on their slopes, however today, that’s relatively rare. In 1998, snowboarding became a competitive sport in the Olympic games. Read more at http://www.usasa.org.

Can An 11 Year Old Be Held Accountable For His Own Injuries?

T. Nelson — Mon, 19 Mar 2012 18:10:02 +0000

Yes he can. A mom sued a club for injuries her son sustained at one of its fundraising events. Her son was injured as he jumped out of a tree. It was undisputed that the boy was intelligent and understood the risks and dangers inherent in his behavior, yet he did it anyway. A Georgia Court of Appeals held the boy assumed the risk of his injury as a matter of law.

Can A Middle School Censor a Student’s Speech?

T. Nelson — Thu, 23 Feb 2012 01:07:19 +0000

A New York Court said absolutely.

A student sued her School District after she was told to delete certain language from her “moving up” speech from middle school to high school. The language at issue was– “As we say our goodbyes and leave middle school behind, I say to you, may the LORD bless you and keep you; make His face shine upon you and be gracious to you; lift up His countenance upon you, and give you peace.”

The plaintiff claimed the School District violated her right to free speech under the First Amendment. The District argued that the language “sounded too religious” and “might offend people.”

The Court held that the School District could censor the student’s speech at this school event. The student’s First Amendment rights were not violated.

Did you know?

The oldest school in the United States is Boston Latin School. It was founded April 23, 1635, a year before Harvard. Five of the fifty-six signers of the Declaration of Independence attended Boston Latin– John Hancock, Samuel Adams, Benjamin Franklin, Robert Treat Paine & William Hooper. See http://www.bls.org/history.

Is There Liability For This Basketball Injury?

T. Nelson — Fri, 20 Jan 2012 20:27:59 +0000

Plaintiff sued for personal injuries after falling during a basketball game played in his brother-in-law’s driveway. He claimed a loose stone along the perimeter of the court caused his fall. The defendant moved to dismiss the plaintiff’s complaint. Since the plaintiff presented no evidence that the defendant created or even had notice of the defective condition on his property, the plaintiff’s complaint was dismissed.

Did you know?

In 1891 Dr. James Naismith, a physical education teacher, invented the game of basketball using a soccer ball and two peach baskets.

Can Two Players Disqualify a Team From Receiving a Trophy?

T. Nelson — Thu, 08 Dec 2011 21:11:23 +0000

Players and their coaches sued the North Carolina High School Athletic Association after they were stripped of their title in a championship. The Association determined at least two players were ineligible to play on the team since they lived outside the high school residential district. The plaintiff coaches and players argued they suffered damages from a loss of reputation and wanted the title reinstated. The Appellate Court found the only party that suffered a legally recognizable loss was the school. The plaintiffs’ case was dismissed.

Did you know?

Research shows that high school students participating in sports have a more positive relationship with their school. They tend to receive higher grades, have higher educational aspirations and have fewer disciplinary problems than those who are less active. They also have a lower dropout rate. Doing athletics has an educational value, in and of itself. The athlete learns all about teamwork, good sportsmanship, self-discipline and how to handle competitive situations. So if you’re in high school, grab that ball and get out there. For more information, check out The Case for High School Activities @ http://www.nfhs.org/content.aspx?id=3262 or Academic Value of Non-Academics: The Case for Keeping Extracurriculars @ http://www.donaldcollins.org/administrators_school_officials/ednext_20121_kronholz.pdf.

What’s the Effect of Signing a Waiver at a Paintball Facility?

T. Nelson — Sun, 06 Nov 2011 16:47:28 +0000

The plaintiff visited a paintball facility with her youth group in Louisville, Kentucky. Prior to playing she signed a waiver releasing the facility from any negligence. During her fourth game her mask slid off and she was hit in the eye. The plaintiff sued the facility for negligence. The facility asked the Court to summarily dismiss the plaintiff’s case. The Court did. It found that the waiver the plaintiff signed released the facility from any liability. What’s the lesson here? Prior to signing any document, it behooves you to read it thoroughly and make certain you understand its contents.

Did you know?

In September 2011, figures were released regarding the number of patients seen in emergency rooms for air and paintball injuries in 2008. In that year, 20,000 injuries were documented. Approximately 60% of the patients were 17 years old and younger. For more information visit http://www.ahrq.gov/news/nn/nn090111.htm.

Can Lady Gaga Shut Down the LadyGaga.Org website?

T. Nelson — Thu, 27 Oct 2011 20:17:12 +0000

No. An Arbitration Panel decided even though Lady Gaga owned the rights to the Lady Gaga trademark, she could not shut down the unofficial fan site @ http://ladygaga.org/. The Panel found, Lady Gaga “[could] not have fame without fans and fans [could] not have fan sites without referring to the objects of their admiration.” So they denied Lady Gaga’s request to shut it down. This unofficial website does disclaim, however, any association with the celebrity.

Did you know?

Trademarks protect names, symbols, logos, and images that identify the source of goods and services. These symbols can impact a consumer’s decision to purchase an item. How often have you picked up an item in a store that had a logo you were familiar with and bought it because of the company’s reputation? For more information, visit the United States Patent and Trademark Office website @ http://www.uspto.gov. There’s also a great video you can watch that explains the differences between patents, copyrights and trademarks @ http://www.uspto.gov/trademarks/process/TMIN.jsp.

Can a High School Teacher Decorate His Classroom As He Sees Fit?

T. Nelson — Thu, 22 Sep 2011 13:11:35 +0000

Not necessarily. The Ninth Circuit Court of Appeals was asked to decide whether a School District infringed on a Math teacher’s First Amendment rights when they ordered him to remove two banners, each around 7 feet wide and 2 feet tall. One stated in large block letters: “IN GOD WE TRUST”; ONE NATION UNDER GOD”; GOD BLESS AMERICA”; and “GOD SHED HIS GRACE ON THEE.” The other banner read: “All men are created equal, they are endowed by their CREATOR.” Each letter of the word “CREATOR” was capitalized and almost twice the size as the other text. The teacher stated at his deposition that, “[T]his is discussing God as opposed to no God….I’m trying to highlight the religious heritage and nature of our nation, that we have that as a foundation.”

The Court found that the words conveyed a religious message and that the First Amendment did not provide a government employee with the right to perform his job any way he saw fit. It opined that the teacher speaks at school not as a private citizen, but as an employee. Citing precedent, the Court found that this teacher could espouse his views “on the sidewalks, in the parks, through the chat-rooms, at his dinner table, and in countless other locations…He may not do so, however, when he is speaking as the government, unless the government allows him to be its voice.”

Did you know?

There was an outcry to recognize God on our coins during the Civil War era. In 1864, IN GOD WE TRUST first appeared on our two-cent coins. In 1956, IN GOD WE TRUST was declared our national motto. In 1957, those same words started to appear on our paper money. To learn more, go to the U.S. Department of Treasury’s website @ http://www.treasury.gov/about/education/Pages/in-god-we-trust.aspx.

When Did England Establish Its Supreme Court?

T. Nelson — Tue, 13 Sep 2011 22:29:23 +0000

In 2009. Are you surprised? I was. Our Supreme Court was established in 1789, 222 years ago.

Prior to 2009, cases in the United Kingdom were brought before judges in the House of Lords (a chamber of Parliament). Now, there are 12 justices that sit on their Supreme Court and they hear civil cases from England, Wales, Northern Ireland and Scotland; and criminal cases from England, Wales and Northern Ireland.

It’s well worth a visit to the Court if you’re in London. However, if you have no plans to visit England in the near future, to learn more about their Court go to http://www.supremecourt.gov.uk.

Will the Real Creator of Modern Family Please Stand Up?

T. Nelson — Wed, 10 Aug 2011 00:04:26 +0000

Plaintiff sued alleging Modern Family, the emmy award-winning hit sitcom, was based on his copyrighted work, Looney Ben. He sued the creators, producers, distributors and broadcasters of the situation comedy for copyright infringement, idea misappropriation and defamation. Defendants denied all the allegations. A New York federal judge has now ruled, even though there were similarities between the scripts no reasonable jury could conclude that the scripts were “substantially similar.” Plaintiff’s claims were dismissed.

Did you know?

In 2010 the average American watched 34 hours and 39 minutes of televison per week. See http://blog.nielsen.com/nielsenwire/consumer/kids-today-how-the-class-of-2011-engages-with-media. That’s a lot of time in front of the television. How much do you watch?

Is a School District Liable for Spectator Injuries at a Softball Game?

T. Nelson — Tue, 28 Jun 2011 21:07:48 +0000

Not necessarily. A mother was watching her daughter’s school softball game when she was hit in the mouth by a foul ball. She was in an unscreened area when hit. She sued the School District for negligence. The District brought a summary judgment and won. The Court found that the plaintiff assumed the risk of injury. It found that the defendant had a duty only to provide some screened seating, which it did. In addition, it found the plaintiff “had a full subjective understanding of the presence and nature of the risk of being hit by a foul ball.”

Can a Signed Release Relieve a Defendant From Liability?

T. Nelson — Tue, 28 Jun 2011 20:58:03 +0000

A 16 year old soccer player fell over a sprinkler head embedded in a grassy field while playing in a tournament. She suffered extensive injuries requiring surgical reconstruction. She sued the tournament organizer and city (the owner of the fields) for negligence and premises liability. The defendants moved for summary judgment and won. A Court of Appeals in California found a Release signed by the player relieved the defendants from any liability.

Did you know?

In 1863 the first set of rules for soccer were developed in London. See http://www.fifa.com/classicfootball/history/law/summary.html.

Uruguay hosted the inaugural FIFA World Cup in 1930. See http://www.fifa.com/worldcup/archive/index.html.

Does a Coach Have a Duty to Supervise Between Games?

T. Nelson — Wed, 18 May 2011 21:42:14 +0000

An 11 year old volleyball player was injured at a teammate’s grandparents’ home when she was thrown from a golf cart during a break between games. She sued her coach for negligent supervision. The Court of Appeals of Indiana found as a matter of law that the coach owed no duty to the player during the break. The coach released the players to their parents after the morning session and told them when to return. Even though the coach and players ended up at an impromptu gathering, it was not a “team event” where the coach owed a duty to supervise.

Did you know? In 1895 William G. Morgan, an instructor at a YMCA in Holyoke, Massachusetts, invented the game of volleyball. He conceived the game by blending aspects of basketball, baseball, tennis and handball into one game. His goal was to create a game for businessmen who found basketball too demanding. Initially, the game was called “mintonette.” The name was changed after someone remarked that ”volleyball” would better reflect the back and forth volleying nature of play. See http://www.volleyball.org/history.html.

Does a Softball Player Assume All Risks of the Game?

T. Nelson — Wed, 18 May 2011 18:50:57 +0000

A New York court refused to take this issue away from a jury and conclude a junior varsity softball player injured while sliding into second base assumed the risk of her injuries. The player had some prior experience playing softball and understood sliding was a part of the game. However, the player testified that she was never taught how to slide, during practice never attempted to slide, no more than 5 minutes was spent discussing sliding, and she never observed anyone suffering a serious injury from sliding. Under the circumstances, the court concluded it was a question of fact for a jury to decide whether based on the the player’s experience she was aware of and appreciated the risks of sliding.

Did you know? Softball teams competed for the first time at the Olympic games in 1996. However in 2005, the International Olympic Committee voted to drop softball and baseball fron the 2012 Olympic program. Since then the Committee has also decided softball will not be included in the 2016 games. The Intermational Baseball Federation and International Softball Federation are preparing a joint proposal to include the sports in the 2020 games. Notably, the United States has won 3 gold medals in softball (in 1996, 2000 and 2004).

Was it Unconstitutional for President Obama to Proclaim May 6 as a National Day of Prayer?

T. Nelson — Sun, 24 Apr 2011 21:51:58 +0000

The Court of Appeals for the Seventh Circuit said no. On April 30, the President issued a proclamation declaring May 6, 2010, as a National Day of Prayer. Freedom From Religion Foundation, Inc. and six of its members (“Plaintiffs) sued the President and Robert Gibbs (the former White House Press Secretary) alleging the proclamation violated the establishment clause of our Constitution (which places a “wall of separation between Church and State”). After a lower court found in favor of the Plaintiffs, the President and his Press Secretary appealed. The Appeals Court reversed the lower court’s decision opining, “[t]hose who do not agree with a President’s statement may speak in opposition to it; they are not entitled to silence the speech of which they disapprove.”

Did you know? Congress has requested Presidents to call on their citizens to pray since the founding of our Republic. Except for Thomas Jefferson (who thought the request was inconsistent with the first amendment), all other Presidents have complied.

Should a Lab Teacher Make a Deli Run While Students Are Working Away?

T. Nelson — Sat, 23 Apr 2011 18:46:44 +0000

A New York Appellate Court said this week, I don’t think so. Two high school students were left in a science lab while their teacher went to buy food. One student caused an explosion injuring another student (the “Plaintiff”). The Plaintiff sued for personal injuries. The Court ruled in his favor concluding he was entitled to a judgment as a matter of law. The Court found the school breached its duty to exercise the level of care necessary, and that failure caused the plaintiff’s injuries. It held the school to the “reasonably prudent parent” standard saying, since the school assumed the “physical custody and control over its students, effectively [it took] the place of parents and guardians.”

Can a Middle School Ban Its Students from Wearing the “I ❤ Boobies!” Bracelet?

T. Nelson — Fri, 15 Apr 2011 18:57:51 +0000

Two students (a 7^th and 8^th grader) were suspended for part of one day and another full day at Easton Area Middle School in Pennsylvania after wearing their “I ❤ Boobies! (Keep A Breast)” bracelets to school. The bracelets were distributed by Keep A Breast Foundation as part of a national breast cancer awareness campaign. The school banned the bracelets, even though they never disrupted the school’s learning environment. The girls and their mothers sued for a preliminary injunction enjoining the school from enforcing the ban. The Court found in their favor. The Court stated, the word “boobies” was neither lewd nor vulgar, particularly in light of the context it was used, and could not be banned. In balancing the competing interests of school management against the protection of the students’ constitutional rights, the Court found in favor of the students’ First Amendment rights. For a look at the decision, go to http://howappealing.law.com/HvsEastonAreaSchoolDistEDPa041211.pdf. So middle school administrators, teachers, parents or students, what do you think?

Did you know?

Approximately one out of every eight women in the U.S. will develop an invasive form of breast cancer. Besides skin cancer, breast cancer is the most commonly diagnosed cancer amongst women. For more statistics, go to http://www.breastcancer.org/symptoms/understand_bc/statistics.jsp.

Should Facebook Have to Return to the Settlement Table?

T. Nelson — Wed, 13 Apr 2011 21:03:21 +0000

On April 11, the United States Court of Appeals for the Ninth Circuit denied the Winklevoss twins (plaintiffs) their request to set aside their settlement with Facebook and Mark Zuckerberg (defendants). The plaintiffs sued the defendants claiming they stole their idea for Facebook, the social networking site. The Appeals Court found that plaintiffs, with their lawyers and financial adviser in tow (referring to the plaintiffs’ father, Howard Winkevoss, a former accounting professor at Wharton School of Business and an expert in valuation), “made a deal that appears quite favorable in light of recent market activity.” The Court concluded, ”[f]or whatever reason, [the plaintffs] now want to back out. Like the district court, we see no basis for allowing them to do so. At some point, litigation must come to an end. That point has now been reached.” If you’d like to read this decision, go to http://www.ca9.uscourts.gov/datastore/opinions/2011/04/11/08-16745.pdf.

Did you know? There are more than 500 million active users on Facebook and 50% of them log on to Facebook on any given day. The average user has 130 friends. About 70% of Facebook users are outside the U.S. For more interesting Facebook statistics, go to http://www.facebook.com/press/info.php?statistics.