Recent Court Cases
April 07, 2011
Katharine M. Nohr, Esq.
Nohr Sports Risk Management LLC
Below are summaries from court cases across the nation that are hot off the press, decided in August and September of 2007. As always, when reading summaries of court decisions, it is important to note that this is no substitute for reading the entire decision which includes details of the relevant facts, case law and state and federal statutes that are applicable as well as analysis of the court’s decision. Simply because a court decides something in one case does not mean that it will apply to your situation and so it is important to talk to an attorney licensed in your state if you have any questions.
#1: Fields v. Kirton, __ So. 2d __, 2007 WL 2254556 (Fla. App. 4 Dist. 2007).
14 year old, Christopher, died when he lost control of an all terrain vehicle (ATV), while attempting a jump, which had caused the ATV to land on top of him. The accident occurred at Thunder Cross Motor Sports Park, where Christopher’s father had taken him, signing a release and waiver of liability, assumption of risk and indemnity agreement so that his son could participate in the sporting activity. Christopher’s mother did not know that the father was allowing their son to do this and she was not aware that one month before, Christopher had attempted the same jump which caused him to sustain a mild concussion and fractured rib.
The defendant, Thunder Cross Motor Sports Park, won the case on motion for summary judgment and the parents appealed the decision. The appellate court ruled in favor of Christopher’s estate, explaining that a parent cannot sign away his son’s estate’s right to sue. Florida law did not support enforcement of the pre-injury release signed by the parent on his son’s behalf. Hence the original summary judgment was reversed on appeal. Now the case will either go to trial or settle before trial.
Point to consider: Releases and waivers signed by parents on behalf of minors may not hold up in court.
#2 Shin v. Ahn, __ Cal.Rptr.3d __, 2007 WL 2445130 (Cal. 2007).
A golfer, Plaintiff Johnny Shin, was checking his messages on his cell phone and getting a bottle of water out of his golf bag while Defendant Jack Ahn was teeing off. Plaintiff knew that he was in front of the tee box and the Defendant was getting ready to tee off. He also knew that he should be standing behind the player when he was teeing off. The golf ball hit Plaintiff in the temple, causing injury.
In a previous, well known Supreme Court of California decision, the court left open the issue of whether the primary assumption of risk doctrine is applicable to noncontact sports, such as golf. In this case, the court addressed that question, concluding that the primary assumption of risk doctrine does apply to golf and that being struck by a carelessly hit ball is an inherent risk of the sport. The golfers had a limited duty of care to other golfers, which would only be breached if they injure them intentionally or their conduct is “so reckless as to be totally outside the range of ordinary activity involved in sport.”
Point to consider: Non contact sports participants may assume the risk just as contact sports participants do.
#3 Simpson v. University of Colorado, __ F.3d___, WL2553402 (10th Cir. 2007).
Plaintiffs alleged that they were sexually assaulted by the University of Colorado football players and high school students on a recruiting visit. In order to show the recruits brought on to campus a “good time”, female “Ambassadors” were paired with recruits in order to show them around campus and make sure that they were entertained. Some of the recruits that went to Plaintiff Simpson’s apartment had been promised the “opportunity to have sex”. Because of a previous incident of assault, a local district attorney initiated a meeting with CU officials, advising them that they needed to develop policies to supervise their recruits and provide “sexual-assault prevention training for football players. Plaintiff’s filed a lawsuit under Title IX, claiming that CU knew about the risks of sexual harassment inherent in their recruiting program and did nothing to “prevent further harassment before their assaults”.
CU won its motion for summary judgment filed with the lower court. On appeal, the court concluded that the evidence was sufficient to support findings “(1) that CU had an official policy of showing high-school football recruits a ‘good time’ on their visits to the CU campus, (2) that the alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a ‘good time’, and (3) that the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference.” The appellate court reversed the lower court’s decision and remanded the matter for further proceeding. The matter will now likely proceed to trial or settle out of court.
Point to consider: Universities should provide training and guidance to student athletes designed to eliminate sexual harassment and sexual assault.