Naser v Lakeridge Athletic Club (2014) H&FLR 2014-38

Zahra Naser v Lakeridge Athletic Club (2014) H&FLR 2014-38

Court of Appeal of California (First Appellate District)

27 June 2014

Coram: Jones PJ, Bruiniers and Simons JJ.

Appearing for the Plaintiff: Michael R Loewen and Noah Freeman Schwinghammer (of Law Office of Michael R Loewen)
Appearing for the Defendant: Joseph J. Minioza, Jason W Mauck and Gregory A. Mase (of Ericksen Arbuthnot)

Catchwords: California – health clubs – release – waiver – locker room – wet floor – slip – injury

Facts: The plaintiff was a member of the Lakeridge Athletic Club in El Sobrante. On joining in February 2004 she signed a membership agreement which included a release waiving any claim against the club in respect of injury caused by its negligence. The release relevantly stated –

The Member is fully aware of the potential dangers incidental in engaging in the activity and instruction of exercise activities (such as weight lifting, bodybuilding, aerobic dancing, and any other exercise activity). In consideration of permitting this member to join this Club or to participate in exercise activity and/or instruction at these premises (including the entire indoor area and outdoor parking area), the Member agrees to voluntarily assume all liability and to indemnify [Lakeridge] for any death, injury, or damage suffered by any person, including the Member, arising out of the Member’s activities at [Lakeridge] even if death, injury, or damage is caused by [Lakeridge’s] own passive or active negligence.

On 26 January 2009 the plaintiff attended the club and used the facilities. She returned to the locker room and while there she slipped in a puddle of water, suffering a knee injury.

The plaintiff brought proceedings against the club in negligence. The Defendant sought summary dismissal of the claim on the basis that the plaintiff, by signing the membership agreement, had voluntarily assumed all liability for injury. The plaintiff responded (inter alia) that the release did not apply because her injury was not exercise-related. The application for dismissal was granted: Naser v Lakeridge Athletic Club (Superior Court of Contra Costa County, Austin J, 21 February 2013, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1. The release expressly provided that it was in “consideration of permitting the member to join this Club or to participate in exercise activity and/or instruction at these premises (including the entire indoor area and outdoor parking area)”. The plaintiff’s use of the locker room was covered by the release.

2. In this case, it was proper to find that slipping on a wet locker room floor was reasonably related to the purposes of the release. Semble, slipping in a wet locker room is a hazard known to relate to use of a health club for exercise.

Leon v Family Fitness Center (#107), Inc (1998) 61 Cal.App.4th 1227, considered.


The Court’s judgment is available here.

Young v Workers Comp. Appeals Board (2014) H&FLR 2014-37

Daniel Young v Workers Compensation Appeals Board and County of Butte (2014) H&FLR 2014-37

Court of Appeal of California (Third Appellate District)

25 June 2014

Coram: Nicholson APJ, Hull and Butz JJ.

Appearing for the Plaintiff: Craig E. Johnsen (of Mastagni, Holstedt, Amick & Johnsen)
Appearing for the First Respondent (Board): No appearance
Appearing for the Second Respondent (County): Mr Richard A Weyuker and Ms Lauren E. Sible (of Cuneo, Black, Ward & Missler)

Catchwords: California – workers compensation – corrections officer – exercise outside work hours – jumping jacks – work requirement – expectancy

Facts:  The plaintiff, aged 64 years, was employed as a Correctional Sergeant by the Butte County Sheriff’s Department. The Department required its employees to maintain themselves in good physical condition so to be able to sustain the “strenuous physical contacts” of the role. However, it did not provide an opportunity to exercise during working hours. It also did not provide guidance as to the exercises or activities required to maintain the necessary level of fitness. The plaintiff therefore maintained a personal fitness regimen in his own time. While doing “jumping jacks” as part of this regimen on 9 January 2012 he sustained a left knee injury (injury).

The plaintiff claimed workers compensation for the injury and a Workers Compensation Judge found the injury to be compensable under §3600(a)(9) of the Californian Labor Code. That section provides that workers compensation benefits are not payable for an injury arising out of

voluntary participation in any off-duty recreational, social or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.

The Workers Compensation Appeals Board (Board) disagreed and annulled the decision: Young v County of Butte (Workers’ Comp. App. Bd, 20 September 2013, unreported). The plaintiff sought review of the decision.

Held: Annulling the Board’s decision, that –

1.  There is a reasonable expectancy of activity in connection with employment if an employee subjectively believes their participation in the activity is expected by the employer and this belief is objectively reasonable. The worker’s subjective belief is a question of fact and its objective reasonableness a question of law.

Ezzy v Workers Compensation Appeals Board (1983) 146 Cal.App.3d 252 and City of Stockton v Workers Compensation Appeals Board (2006) 135 Cal.App.4th 1513, followed.

2. To find a belief objectively reasonable, there must be a substantial nexus between the employer’s requirements and the specific off-duty activity in which the worker was engaged when injured. In this case, the failure of the department to provide guidance as to exercises or an opportunity to exercise at work meant it was objectively reasonable for the plaintiff to believe the department expected him to exercise while off duty. It would be completely unrealistic to find that jumping jacks – being a common part of warm-up exercises – were not expected of middle aged correctional sergeants who were required to maintain good physical condition.

City of Stockton v Workers Compensation Appeals Board (2006) 135 Cal.App.4th 1513 and Wilson v Workers Compensation Appeals Board (1987) 196 Cal.App.3d 902, followed.


The Court’s judgment is available here.

Proprietor v Adolfs (2014) H&FLR 2014-36

Proprietor of a house in L. Street  v Friedhelm Adolfs (2014) H&FLR 2014-36

Düsseldorf Regional Court

26 June 2014

Coram: Ralf J.

Appearing for the Plaintiff: Prof. Dr. Carmen Griesel (of Griesel & Kollegen)
Appearing for the Defendant: Mr Martin Lauppe-Assmann (of Lauppe & Hassenkamp)

Catchwords: Germany – tobacco – smoking – landlord and tenant – nuisance – eviction.

Facts: The defendant had been a caretaker at a block of flats from 1973 to 2009. He was provided with an apartment as part of his remuneration. After retiring in 2009 he rented the flat under a standard contract.

The defendant was and is a smoker, consuming about 15 cigarettes a day. It was admitted (but later denied) that he had allowed cigarette smoke to escape into the stairwell and other parts of the building rather than allowing it to escape through open windows. It was found that his landlord had repeatedly warned him verbally and in writing about the escaping odour from 2012.

The plaintiff sought the defendant’s eviction on the basis that cigarette smoke was passing into the stairwell of the apartment building and was allegedly a health hazard for other residents. The eviction was upheld: Proprietor v Adolfs (Düsseldorf District Court, Rundel J, 31 July 2013). The defendant appealed.

Held: Dismissing the appeal, that –

1. The fact that a tenant smokes in their apartment is not a breach of their tenancy contract.

Case No. VIII ZR 37/07 (Federal Court of Germany, 5 March 2008), followed.

2. However, other tenants in the building were not to be expected to endure “unacceptable and intolerable odour”.

3. The defendant was in breach of his tenancy agreement by failing to take adequate steps to prevent cigarette smoke from entering the common areas of the building by not airing his home and not emptying his numerous ashtrays. This provided a sufficient basis to terminate his tenancy.

Case No. 6 S 313/06 (Braunschweig Regional Court, 10 April 2007), considered.

4. In view of the defendant’s long residence in the apartment, however, he was given until 31 December 2014.


The Court’s judgment is available here.  An appeal to the Federal Court of Germany is contemplated

Velasquez v Superior Court (2014) H&FLR 2014-35

Jorge Velasquez, Jr v Superior Court of Los Angeles County and The People (2014) H&FLR 2014-35

Court of Appeal of California (Second Appellate District)

17 July 2014

Coram: Klein PJ, Aldrich and Kitching JJ

Appearing for the Petitioner (Velasquez): Messrs Ronald Brown, Albert Menaster, Kenneth Erlich and Dylan Ford (public defenders)
Appearing for the Respondent (Superior Court): No appearance
Appearing for the Real Party in Interest (People): Mesdames Jackie Lacey, Phyllis Asayama and Beth Widmark and Mr Matthew Brown (District Attorneys)

Catchwords: California – criminal law – bicycle – intoxicated cyclist – injury – reckless – vehicle – definition.

Facts: On 1 April 2013 the defendant was travelling downhill on his bicycle after a prolonged drinking session. His bicycle had no brakes and could only be stopped with foot pressure. A car pulled in front of him and to avoid it he veered onto the wrong side of the road, colliding with Ms Sudha Russell, who suffered significant injuries. The defendant’s blood alcohol reading was 2.18 and he was charged with reckless driving of a vehicle causing injury under §23103 of the Californian Vehicle Code (Code).

The Code is ambiguous as to its application to bicycles. Section 670 defines a vehicle as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power …” However, §21200(a) states that a “person riding a bicycle … upon a highway … is subject to all the provisions applicable to the driver of a vehicle by this division”.

On the basis that a bicycle is not a vehicle, the defendant applied to dismiss the proceedings. The trial court denied the application but invited the defendant to seek a writ of prohibition in the Court of Appeal: People v Velasquez (Superior Court of Los Angeles County, Priver J, 7 November 2013, unreported).

Held: Dismissing the application, that –

1. A specific provision prevails over a general one. Because §21200 (and by extension §23103) applies specifically to cyclists, it is to be preferred to the generally drawn §670. A cyclist can therefore be subject to criminal charges for reckless driving.

People v Ahmed (2011) 53 Cal. 4th 156 and People v Calderon (2013) 214 Cal. App. 4th 656, followed.

Clingenpeel v Municipal Court (1980) 108 Cal. App. 3d. 394, not followed.

2. While bicycles and motor vehicles will often pose significantly different levels of danger to the public, the unfairness is mitigated by the availability of lesser penalties for reckless cyclists.


The court’s judgment is available here.

Vincent Petit v French Republic (2014) H&FLR 2014-34

Vincent Petit v French Republic (2014) H&FLR 2014-34

Administrative Court of Appeal at Nantes (France)

21 July 2014

Coram: Not identified.

Appearing for the Plaintiff: Ms Corinne Lepage (of Huglo Lepage Associés Conseil)
Appearing for the Defendant: Not identified

Catchwords: France – horse riding – algae – gas – death of horse – failure to prevent contamination – liability

Facts: On 28 July 2009 the plaintiff rode his horse onto a beach at Saint-Michel-en-Greve. The beach was contaminated by an outbreak of green algae which was giving off hydrogen sulfide gas as it decomposed. A sign had been placed at the entrance to the beach advising the public to avoid the algae and warning of a threat to health. The plaintiff’s horse became bogged in a mudflat and the prolonged exposure to the gas caused the plaintiff to lose consciousness and the horse to die.

The plaintiff brought proceedings for the loss of his horse against the French state on the basis that it had failed to take proper steps to prevent an outbreak of green algae. The proceeding was dismissed by the Administrative Tribunal at Rennes: Vincent Petit v French Republic (2012), Le Figaro, 29 June 2012. The plaintiff appealed.

Held: Allowing the appeal, that –

1.  The state was responsible for the outbreak of algae because it had not adequately implemented national or European rules on preventing contamination of waters through agricultural activities. Such contamination was accepted as the cause of algal blooms.

2.  The plaintiff had failed to take adequate care, inasmuch as he had taken his horse into a part of the beach particularly exposed to algae. As such, liability was apportioned two-thirds against plaintiff and one third against the defendant.


A written judgment has not been released. This report has been compiled based on the Court’s communiqué and on the reports in Le Figaro of 5 August 2009, 29 June 2012 and 21 July 2014, Le Télégramme of 21 July 2014 and La Voix du Nord of 21 July 2014.

Pelman v McDonald’s Corporation (2003) H&FLR 2014-33

Ashley Pelman and Ors v McDonald’s Corporation and Ors (2003) H&FLR 2014-33

United States District Court (S.D.N.Y.)

22 January 2003

Coram: Sweet DJ

Appearing for the Plaintiffs: Mr Samuel Hirsch (of Samuel Hirsch & Associates)
Appearing for the Defendants: Messrs Thomas Quigley, Bradley Lerman and Bruce Braun (of Winston & Strawn) and Mesdames Anne Kimball and Sarah Olson (of Wildman, Harrold, Allen & Dixon)

Catchwords: New York – infant – McDonald’s – overweight – heart disease – diabetes – hypertension – high cholesterol – deceptive acts – negligence – puffery – failure to warn

Facts: The plaintiff was an infant who had consumed the hamburgers and other items sold by the defendant. She had become overweight and developed (inter alia) heart disease, diabetes, hypertension and high cholesterol. She issued proceedings aganst the defendant, alleging deceptive acts and practices breaching the Consumer Protection Act, N.Y. General Business Law, §349 and §350 (by failing to disclose the ingredients and/or health effects of their products) and the N.Y.C. Administrative Code, Ch. 5, 20-700 (in relation to the defendant’s marketing practises). She also alleged that the defendant had negligently sold products which caused negative health effects and which were addictive, and that it had failed to warn cusomers of the makeup of its products and the health-effects of consuming them.

The defendant sought summary dismissal of the complaint under r.12(b)(6) of the Federal Rules of Civil Procedure.

Held: Dismissing the complaint with leave to re-plead –

1. The plaintiff had not identified an instance of deceptive acts or advertising to children, and therefore the allegations on these points had to be dismissed.

2. Obiter, that encouraging consumers to eat McDonald’s “everyday!” was mere puffery absent a claim that doing so would have particular health effects.

Coastal Communications Corp. v. Adams/Laux Co Inc, 40 USPQ 2d 1383-1996 (SDNY, 24 September 1996), considered.

3. An allegation of liability to consumers based on their over-consumption of products will fail if the effects of overconsumption are common knowledge. In order to state a claim it would be necessary to allege that the products are so extraordinarily unhealthy as to be (a) outside the reasonable contemplation of consumers, or (b) dangerous even in their intended use. The Court noted the significant processing undergone by the defendant’s products and gave leave to amend the complaint to raise allegations on the point.

4. For the claim to survive an application to dismiss, it would be necessary to show that the plaintiff ate at McDonalds on enough occasions to raise a question as to whether its products played a significant role in her health problems. The more often she ate there, the more likely it was that its products had caused her injuries. Further, the complaint would need to address any impact from other variables (for example, genetics).

5. A manufacturer will not be liable for a failure to warn of its products’ unhealthy attributes if the risks are sufficiently obvious without a warning. However, this does not apply where elements of the hazard are concealed or not reasnably apparent to the user.

Andrulonis v United States, 924 F. 2d 1210 (2d Cir., 1991); Liriano v Hobart Corp., 92 NY.2d 232, 677 NYS.2d 764, 700 NE.2d 303 (NY, 1998), followed.


The Court’s judgment is available here.

State v Native Wholesale Supply (2014) H&FLR 2014-32

State of Oklahoma ex rel. E. Scott Pruitt v Native Wholesale Supply (2014) H&FLR 2014-32

Supreme Court of Oklahoma

10 June 2014

Coram: Colbert CJ, Reif VCJ, Watt, Winchester, Taylor, Kauger and Gurich JJ.

Appearing for the Plaintiff: E. Clyde Kirk and Ryan R Chaffin (Assistant Attorneys-General)
Appearing for the Defendant: David L. Kearney, Gregory T. Metcalfe and Paula M. Williams (of Gable Gotwals)

Catchwords: Oklahoma – tobacco – health care expenses – contraband cigarettes – disgorgement – settled law of the case – jury trial

Facts: In 1999 and 2004 the Oklahoma legislature enacted two statutes in relation to the sale of tobacco products* (Acts). The effect of the Acts was to require tobacco product manufacturers whose products were sold in Oklahoma to pay money into escrow accounts to cover health care expenses resulting from cigarette smoking. The State’s Attorney-General would publish a directory of cigarette brands that may be sold in Oklahoma and a list of tobacco product manufacturers who had complied with the Acts. The Acts made it unlawful for a person to sell or possess for sale cigarettes which were not listed in the directory or where the manufacturer had not complied with the Acts.

In August 2006 ‘Seneca’ brand cigarettes and their manufacturer (Grand River Enterprises Six Nations Ltd) were removed from the directory. In 2007 and 2008 the defendant, Native Wholesale Supplies (NWS), brought Seneca cigarettes into the State. In May 2008 the Attorney-General commenced proceedings seeking disgorgement and payment to the State of NWS’ gross proceeds of sale of the contraband cigarettes. After an intervening dispute over jurisdiction (State ex rel. Edmonson v Native Wholesale Supply, 2010 OK 58, 237 P.3d 199) (NWS I), the Oklahoma County District Court on 9 May 2013 entered judgment against NWS for $47,767,795.20. NWS appealed.

Held: By Colbert CJ, Reif VCJ, Watt, Winchester, Taylor and Kauger JJ, dismissing the appeal, that –

1. The “settled-law-of-the-case doctrine” forbids parties re-litigating issues which are finally settled by an appellate decision or which a party failed to raise on appeal. Accordingly, the factual conclusions in NWS I were binding on the parties and the District Court.

Smedsrud v Powell, 2002 OK 87, 61 P.3d 891, followed.

2. The defendant was not entitled to a jury trial on the unsettled factual issues because the Acts did not provide for a jury trial andf neither the Federal nor State constitutions required one to be held. The right to a jury trial recognised in the Oklahoma Constitution referred to the right as it existed at the time of the Constitution’s adoption.

A.E. v State, 1987 OK 76, 743 P.2d 1041; Maryland National Insurance Co v District Court of Oklahoma County, 1969 OK 73, 455 P.2d 690; Keeter v State, 1921 OK 197, 198 P. 866, followed

A dissenting judgment was entered by Gurich J.


The Court’s judgment is available here.
* The “Escrow Statute“, 37 O.S. Supp 1999 §§600.21-600.23 and the Master Settlement Agreement Complementary Act, 68 O.S. Supp. 2004 §§360.1 et eq.

Prosecutor v Lee Horner (2014) H&FLR 2014-31

Prosecutor v Lee Horner (2014) H&FLR 2014-31

Leeds Magistrates’ Court

3 July 2014

Coram: Spruce DDJ.

Appearing for the Prosecutor: Mr Vincent O’Malley (instructors not identified)
Appearing for the Defendant: Narinder Rathour (of John Delaney & Co)

Catchwords: UK – Leeds – dogs – death

Facts: On 9 December 2013 one Emma Bennett was attacked by two “pit-bull type” dogs owned by the defendant (her partner).

The defendant was charged with possessing prohibited dogs in breach of the Dangerous Dogs Act 1991. He pleaded guilty to the charge but asserted that he was not certain either dog was a pit bull, save that he suspected one of them may be. Expert evidence was led that experts examining the dogs found them to have ‘sufficient’ characteristics of a prohibited breed of pit bull

It was put in mitigation that the defendant had suffered the loss of his partner and damage to his family ties, had developed anxiety and was having difficulty sleeping.

Held: The Court found that while a term of imprisonment would be appropriate, it would not be imposed in light of the defendants personal loss in the form of the death of his partner. It was accepted that the defendant was not aware the dogs were banned, but that he was also ‘ambivalent’ to the danger they represented and he had made no effort to establish their breed.
The Court noted that the Dangerous Dogs Act had been intended to protect the public from particular breeds because –

these animals are inclined to be unpredictable in nature and often with devastating consequences. … That unpredictability, those consequences could not be more solemnly illustrated than in the unique and tragic circumstances of [this] case … [in which two] dogs with no previous recorded history of difficulty, danger or harm have set upon their owner.

The defendant was sentenced to a community order and directed to complete 280 hours of unpaid work as well as being ordered to pay £500 towards destruction of the dogs, £240 in prosecution costs and a £60 victim surcharge. He was also banned Horner from keeping dogs for life.


No written judgment is available. This report has been compiled based on reports in the Yorkshire Evening Post of 16 June 2014 and 7 July 2014, and the Huffington Post of 11 July 2014