Tag Archives: California

The Difference Between Ordinary Negligence and Gross Negligence

By Doyice Cotten

Most sport, recreation, and fitness professionals have an idea (though they are often incorrect) of what constitutes ordinary negligence. Many understand that

ordinary negligence is the failure to exercise the level of care that someone of ordinary prudence would have exercised under the same circumstances. Many understand that negligence is indicated by  inattention, irresponsibility, and actions that are careless.  

A California federal court (Kabogoza v. Blue Water Boating,

AEDs Required in California Schools that Offer Interscholastic Athletics

By Doyice Cotten

In 2018, California passed a law mandating that all public schools or charter schools that offer interscholastic athletics must have at least one automated external defibrillator (AED) – effective July 1, 2019. Interestingly, the legislature did not provide funding for the devices, but noted that existing law authorizes a public school to solicit and receive nonstate funds to acquire and maintain an automated external defibrillator (AED).

There has been considerable complaint about the fact that this law requires an AED,

California: When a Provider Increases the Inherent Risks of the Activity

By Doyice Cotten

Jim McNeil was a professional motocross rider and jumper; he was killed in an incident in which he was attempting to make a 75 foot jump over a motorhome (McNeil v. Freestylemx.com, 2016). His motorcycle had a loss of power and his flight fell short of the landing ramp. He had performed similar jumps in about 250 shows. In an earlier litigation, this court declined to grant the defendant’s bid for summary judgment because there was an issue of fact as to whether McNeil had actually signed the waiver.

Failure to Properly Name Protected Parties Results in a Reversal in Favor of the Plaintiff

By Doyice Cotten

Bradford Jones and his son Forbes collided with each other while riding jet skis. Bradford was injured and subsequently sued both The Barge, LLC and its owner David Hubert. The trial court granted summary judgment in favor of defendants based on the liability waiver signed by Jones prior to the ride. It should be noted that the waiver listed The Barge, LLC as a protected party, but the ownership and legal status of the business had changed several times over the years and at the time of the accident,

Risk Management Fiasco in Management of California Half Marathon

By Doyice Cotten

Hundreds of running-related events are held each year. They include 5k runs, mile runs, marathons, half marathons, and events that include other activities such as the triathlon. There is risk in all of these, but most promoters take care to manage the risk as well as possible.

In a huge  half marathon/5K run in California involving about 10,000 participants, a runner collapsed seconds after completion of the half marathon and died a few minutes later (Hass v.

Importance of Listing all Protected Parties in Your Waiver

By Doyice Cotten

Bradford Jones and his son, Forbes, rented jet skis from The Barge, LLC, owned by David Hubert. As they began riding, Bradford was injured when he turned suddenly and stopped in front of the inexperienced boy’s jet ski.  They collided, Jones was injured, and they subsequently sued The Barge, LLC, and Hubert.

Hubert had bought the business in 2006 and became the sole owner when he bought out his partner and renamed the business The Barge Watercraft Rentals.

Bicycle Racer Killed in Collision with Support Vehicle Parked in the Traffic Lane

By Doyice Cotten

Suzanne Rivera competed in a bicycling race organized by Velo Promo, LLC and USA Cycling, Inc. During the race, she struck a support van  parked in the lane of the road designated for the cyclists on a downhill, curved section of the course. She was killed. The heirs sued defendants Velo Promo, USA Cycling and Richard Ciccarelli (the driver of the support van) alleging negligence (and gross negligence).(Rivera v. Velo Promo,

Hot Air Balloons: Is a Balloon a Common Carrier in California?

 

By Doyice Cotten

The issue as to whether an activity or mode of transportation is a common carrier can determine the duty owed to passengers. A recent California case (Grotheer v. Escape Adventures, Inc., 2017), addressed the issue of whether a hot air balloon is a common carrier. The court defined a common carrier of persons as anyone “who offers to the public to carry persons.” (Civ. Code, § 2168.)

The duty that a common carrier owes to its clientele depends upon whether the ride is gratuitous or if there is a fee charged.

Adhesionary Contracts or Unconscionable Contracts: Are They Enforceable?

By Doyice Cotten

A recent New York waiver case (Lobell v. Youtube, LLC and Google, Inc., 2017 U.S. Dist. LEXIS 127327) involved the allegation that a waiver was not enforceable because it was both an adhesionary contract and an unconscionable contract. The U.S. District Court for the Southern District of New York examined the issue in light of California law (as called for by the provisions of the contract).

Adhesionary Contract

The court defined an adhesionary contract as “a standardized contract,

A Waiver is not Always Necessary! Primary Assumption of Risk

By Doyice Cotten

Kathleen Swigart entered a long distance horse riding event conducted by the American Endurance Ride Conference (AERC), a national governing and record-keeping body for “long distance horse riding.” An endurance ride is  “a highly competitive and demanding sport” in which the riders follow a specific course, collecting playing cards at set checkpoints along the route to verify having completed the entire course before crossing the finish line.

At the eight-mile checkpoint, seven horses were close together in a single line.