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Poulos v Samoa Rugby Union Inc. (2011) H&FLR 2015-28

Peter Poulos v Samoa Rugby Union Incorporated (2011) H&FLR 2015-28

Supreme Court of Samoa

8 August 2011

Coram: Slicer J

Appearing for the Plaintiff: L Tamati and A Su’a (instructors not identified)
Appearing for the Defendant: S Leung Wai (instructors not identified)

Catchwords: Samoa – rugby – professional athlete – selection team – injury – assurance – ‘looked after’.

Facts: The plaintiff was a professional rugby player. On 5 April 2006 he took part in a practice match between a local club and a side made up of players (including himself) being considered for selection in the Samoan national side.  During a maul he suffered a neck injury as a result of fair play.  The injury was expected to end his playing career.

The Court accepted that the plaintiff entered upon the selection process having been assured that the defendant would “look after him” in relation to medical treatment and associated costs (but not future loss of income) in the event of injury.  In the event he was provided with little or no assistance by the defendant and brought proceedings against it on the basis that it had tortiously or in breach of contract failed to honour its assurance, including by failing to take out suitable insurance.

Held: Upholding the claim in part, that –

1. It was indisputable that the defendant owed the plaintiff a duty of care while he was taking part in the selection process.  The real issue was the standard of care to be observed, which would be determined by what was reasonable in the circumstances as regards taking out insurance.  In this case, the defendant was entitled to rely on the standard set by the International Rugby Board which did not require insurance to be taken out over players in the selection process.

Bolton v Stone [1951] AC 850; Wyong Shire Council v Shirt (1980) 146 CLR 552; and Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520, followed.

2. It was not appropriate for the courts to imply a requirement to take out insurance into a contract involving a sports injury

Reid v Rush and Tompkins Group Plc [1990] 1 WLR 212, followed.

3. The general agreement that the defendant would look after the plaintiff was binding on it, despite the defendant not being obliged to take out insurance to this effect.  The defendant had breached this commitment by doing little or nothing to assist the plaintiff following his injury.  In the circumstances compensation was payable and damages were assessed.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Boroondara City Council v Cattanach (2004) H&FLR 2015-17

Boroondara City Council v Ellen Cattanach (2004) H&FLR 2015-17

Court of Appeal (Victoria)

20 August 2004

Coram: Winneke P, Chernov JA and Bongiorno AJA

Appearing for the Appellant: Messrs A.G. Uren Q.C. and G.J. Moloney (instructed by Hunt & Hunt)
Appearing for the Respondent: Messrs D.A. Kendall Q.C. and David Martin (instructed by Hounslow & Associates)

Catchwords: Victoria – runner – defective pavement – trip and fall – injury – negligence

Facts: On the morning of 12 December 2000 the plaintiff was running recreationally along a footpath in the defendant’s municipality.  She ran with two small dogs which were at the end of a leash which she was holding.  As she passed in front of 39 Gordon Street, Balwyn, she tripped on an uneven section of footpath and fell, suffering significant injuries.

The occupant of 39 Gordon Street, Balwyn, had alerted the defendant to the damage to the footpath in 1995 and 1996.  In 1997 the defendant had removed a tree adjacent to the defect but took no steps to repair the footpath..  Within two weeks of the plaintiff’s fall repairs were effected; it was common ground that the repairs were inexpensive.

The plaintiff successfully sued the municipality for negligently failing to make repairs and was awarded damages:  Cattanach v Boroondara City Council (County Ct. of Vic., Judge Bourke, 20 June 2003, unreported).  The defendant appealed.

Held: Per curiam, allowing the appeal and dismissing the claim, that

1. A municipality is not under a duty to prevent or eliminate all dangers in footpaths.  In most cases, where a municipality knows or ought to know of such a danger, it is obliged to remedy it only if the danger would not be obvious to an ordinary, reasonable pedestrian taking proper care for their own safety.  The onus is on the plaintiff to establish that the hazard was not one which could have been avoided with the exercise of reasonable care.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Newcastle City Council v Lindsay (NSW Ct App., Giles and Tobias JJA, McLellan AJA, 22 June 2004, unreported); and Temora Shire Council v Stein (2004) 134 LGERA 407, considered.

2. Whether a defect in a footpath causes a reasonable foreseeability of harm, and whether the hazard is obvious, must be considered from the perspective of the ordinary, reasonable pedestrian keeping a proper lookout.  That is, from the perspective of a person walking.  Persons who are not walking but (for example) running, skating, cycling are required to pay greater attention to the state of the path given the greater difficulty in observing hazards when moving faster than a walk.  These users should not expect councils to maintain footpaths to a higher standard than that required for safe walking.

Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512

Judgment

The Court’s judgment is available here.

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Whigham v Jackson Dawson Communic’ns (2014) H&FLR 2014-53

Stephen Whigham v Jackson Dawson Communications and The Hartford (2014) H&FLR 2014-53

Supreme Court of South Carolina

27 August 2014

Coram: Toal CJ, Hearn, Kittredge and Pleicones JJ, and Moore AJ

Appearing for the Plaintiff: Douglas A Churdar (of Churdar Law Firm)
Appearing for the Defendants: Benjamin M Renfrow and Wesley J Shull (of Willson Jones Carter & Baxley PA).

Catchwords: South Carolina – workers compensation – team building event – kickball – injury – compensability

Facts: The plaintiff was employed by the defendant (Jackson Dawson Communications) as Director of Creative Solutions.  The employer attached value to holding team building events and the plaintiff proposed holding a company kickball game.  The company endorsed the proposal and instructed him to proceed with it, including spending a certain amount of the company’s funds.  During the kickball game which ultimately took place, the plaintiff jumped and landed awkwardly, suffering a severe break of his right leg.

Section 42-1-160(A) of the South Carolina Code provides that for an injury to be compensable, it must arise “out of and in the course of employment”.

The plaintiff lodged a claim for workers compensation which was rejected by a single member of the Workers’ Compensation Commission and by the full Commission on the grounds that the injury had not arisen out of or in the course of employment.  The plaintiff’s appeal to the Court of Appeals was dismissed: Whigham v Jackson Dawson Communications, (S.C. Ct. App., Pieper, Konduros and Geathers JJ, 11 April 2012, unreported).  The plaintiff appealed to the South Carolina Supreme Court.

Held: per Toal CJ, Hearn J and Moore AJ, allowing the appeal, that –

1. In assessing whether a work injury is compensable, the Workers’ Compensation Act is liberally construed towards providing coverage.  Any reasonable doubt in the Act’s interpretation should be construed in favour of coverage*.

Shealy v Aiken County, 341 SC 448, 535 SE.2d 438 (2000), approved.

2. An injury arises out of employment where a rational mind would identify a causal relationship between the injury and the conditions under which the work was performed.

Crisp v SouthCo Inc, 401 SC 627, 738 SE.2d 835 (2013), approved.

3. To assess whether a recreational or social activity fell within the course of employment, the court considers whether it falls within the following factors –

(a) It occurred on the employers premises during a lunch or recreational period as a regular incident of employment.
(b) The employer made the activity part of the employee’s services or otherwise expressly or impliedly required participation.
(c) The employer derived a substantial direct benefit from the activity beyond the intangible value of improvement in employee health or morale.

Leopard v Blackman-Uhler, 318 SC 369, 458 SE.2d 41 (1995), followed.

4. In this case, the plaintiff was impliedly required to attend the game which he had organised and it became part of his services.  As such it arose out of the course of employment.

Per Kittredge and Pleicones JJ (dissenting), that there was insufficient evidence to warrant overturning the decisions of the courts below.

Judgment

The Court’s judgment is available here.

=========================================

* This may be seen as a norm of compensation statutes: cf Hegedis v Carlton & United Breweries (2000) 4 VR 296 at ¶32.

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Wilson v O’Gorman High School (2008) H&FLR 2014-50

Andrea Wilson v O’Gorman High School and Others (2008) H&FLR 2014-50

United States District Court (District of South Dakota)

26 June 2008

Coram: Schreier CJ

Appearing for the plaintiff: Steve Landon (of Cadwell Sanford Deibert & Garry LLP)
Appearing for the Defendants: Jim McMahon (of Murphy, Goldammer & Prendergast, LLP)

Catchwords: South Dakota – gymnastics – coaching – injury – standard of care – assumption of risk

Facts: The plaintiff was a gymnast and took part in high school gymnastics with the defendant. On 22 January 2003 as part of school gymnastic training she was practicing a manoeuvre known as the “reverse hecht” under the supervision of a coach supplied by the school. She had attempted the manoeuvre about thirty times that day. On her final attempt she released the bar late and fell, suffering severe injuries.

The plaintiff brought proceedings in negligence against the school and coach, alleging (inter alia) that the coach had attempted to instruct her in the reverse hecht despite not being trained to do so, that he had failed to prevent her practicing the manoeuvre as many as thirty times, and that he had not moved her to a foam pit where she could more safely practice the manoeuvre despite her multiple failed attempts.

The defendants disputed the applicable standard of care and also asserted voluntary assumption of risk and contributory negligence. The defendants sought summary dismissal of her claim.

Held: Refusing the application for summary judgment –

1. To establish negligence a plaintiff must establish that there was a duty on the part of defendants, that they failed to meet that duty, and that this failure resulted in injury*.

Kuehl v Horner (JW) Lumber Co, 678 NW.2d 809 (SD 2004), followed.

2. The standard of care is not reduced for people engaged in sporting activities, like coaches or sports administrators. The general standard of care applies.

Kahn v East Side Union High School District, 75 P.3d 30 (Cal. 2003), not followed.
Gasper v Freidel, 450 NW.2d 226 (SD 1990), distinguished.
Rantapaa v Black Hills Chair Lift Co, 633 NW.2d 196 (SD 2001), considered.

3. Application of the general negligence standard still allows the defendant to allege assumption of risk.  To succeed on this basis a defendant must show that the plaintiff had actual or constructive knowledge of the risk, appreciated its character, and voluntarily accepted the risk (having had the time, knowledge, and experience to make an intelligent choice). However, a plaintiff is not obliged to anticipate the negligent conduct of others.

Goepfert v Filler, 563 NW.2d 140 (SD 1997) and Ray v Downes, 576 NW.2d 896 (SD 1998), followed.

Judgment
The Court’s judgment is available here.
========================================================

* The defendants did not dispute that they owed the plaintiff a duty of care.

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Phee v Gordon (2013) H&FLR 2014-46

Anthony Phee v James Gordon and Niddry Castle Golf Club (2013) H&FLR 2014-46

Inner House – Court of Session (Scotland)

14 March 2013

Coram: Lord Clarke, Lord Hodge and Lord Philip

Appearing for the First Defender and Reclaimer* (Gordon): Laurence Murphy QC (instructed by HBM Sayers (now BLM)
Appearing for the Second Defender and Reclaimer (Club): Graham Primrose QC and Alan Cowan (instructed by Simpson & Marwick)
Appearing for the Pursuer** and Respondent (Phee): Nicholas Ellis QC and Bryan Heaney (instructed by Lawford Kidd)

Catchwords: Scotland – golf – design of course – mis-hit golf ball – warning – injury – negligence – apportionment

Facts: On 10 August 2007 the pursuer, a novice golfer, was playing golf on a course operated by the second defender. The course was ‘tight’ and had a number of holes which crossed or were in close proximity to each other. Among other things, the path between sixth hole and the seventh tee ran along the edge of the 18th hole. A player on the 18th tee, looking to the 18th fairway, could see people walking on the path towards the seventh tee. The club did not require any minimum standard of skill of its players and did not provide warnings as to how to protect oneself from a mis-hit golf ball.

The pursuer was walking on the path between the sixth hole and the seventh tee when the first defender, a moderately experienced golfer, teed off from the 18th tee. He gave evidence that he aimed his shot slightly to the right of the normal target line from the tee to the centre of the normal target area on the fairway. He played a bad shot (a “duck hook”) in which the ball initially travelled straight and then swerved to the left. He and his companion shouted “fore”. Mr Phee responded by leaning forwards, placing his left hand in front of his face and looking for the origin of the ball. As he did so he was struck on the left side of his head, causing the loss of his left eye.

The pursuer brought proceedings against Gordon in negligence at common law and against the Club under the Occupiers Liability (Scotland) Act 1960, §2(1). The trial judge upheld the claim and apportioned liability 70% against Gordon and 30% against the Club: Phee v Gordon, 2011 GWD 38-786, 2011 Rep LR 108. The defenders appealed.

Held: Per curiam, allowing the first defender’s appeal in part –

1. The appeal points raised by the first defender were rejected. Obiter, that had the appeal court considered the matter de novo, it would have considered that the first defender’s failure to ensure that the pursuer was aware that he (Gordon) was about to tee off and were alert to the danger would have amounted to negligence.

2. The second defender was not entitled to assume that all users of the course were aware of the rules of golf or knew how to respond to a warning shout. It was not entitled to assume that all golfers would play in a safe manner at all times. Among other things, the danger could have been minimized at little cost with suitable warning signs on the 18th tee or on the path from the sixth green to the seventh tee.

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd [1967] AC 617 (PC), followed.

3. The inner House of the Court of Session should only alter the trial judge’s apportionment of fault if the trial judge has manifestly and substantially erred. This was the case here, where the trial judge had not explained the basis for his apportionment and had overlooked evidence that the club’s failure to warn inexperienced players of dangers on the course. A more appropriate apportionment of fault was 20% to the first defender and 80% to the second.

McCusker v Saveheat Cavity Wall Insulation Ltd, 1987 SLT 24 and Boy Andrew (Owners) v St Rognvald (Owners), 1947 SC (HL) 70, followed

Judgment

The Court’s judgment is available here.

A further substantive appeal by the second defender was abandoned, although an appeal did proceed on the question of costs: Phee v Gordon [2014] CSIH 50

=========================

* Defendant and Appellant.
** Plaintiff

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Atlanta National League Baseball Club v FF & Ors (2014) H&FLR 2014-43

Atlanta National League Baseball Club v FF & Ors (2014) H&FLR 2014-42

Georgia Court of Appeals

11 July 2014

Coram: Barnes PJ, Boggs and Branch JJ

Appearing for the Appellant: The Hon Leah Ward Sears and Mr Ronald Gaither (of Schiff Hardin LLP) and Mr Bradley Wolff and Ms Pamela Lee (of Swift, Currie, McGhee & Hiers LLP)
Appearing for the Respondent: Mr Matthew Dwyer (of Dwyer Law Group), Messrs Peter Law and Michael Moran (both of Law & Moran) and Ms Amanda Evans.

Catchwords: Georgia – baseball – infant plaintiff – foul ball – injury – baseball rule – declaratory judgment – negligence

Facts: The plaintiff, a six year old girl, attended a baseball game at the home ground of the Atlanta Braves. While sitting in a part of the stadium behind the visitors’ dugout, she was hit in the head by a foul ball, suffering serious injuries. By her litigation guardian, she issued proceedings against the defendant for negligence.

The defendant applied for a declaratory judgment as to the applicable standard of care under Georgia’s Declaratory Judgment Act, which relevantly provides (OCGA §9-4-2) that –

(a) In cases of actual controversy, the … superior courts of this state shall have power, upon … appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration …; and the declaration shall have the force and effect of a final judgment … and be reviewable as such.

(b) In addition …, the … superior courts of this state shall have power, upon … appropriate pleading, to declare rights and other legal relations of any interested party petitioning for the declaration … in any civil case in which it appears to the court that the ends of justice require that the declaration should be made; and the declaration shall have the force and effect of a final judgment or decree and be reviewable as such.

The court denied the application: FF v Atlanta National League Baseball Club (Fulton County State Court, Porter J, 3 January 2013, unreported). The defendant sought interlocutory review of the denial, arguing that the trial court should have declared that the ‘baseball rule’* formed part of the law of Georgia.

Held: Dismissing the application, that a party seeking a declaratory judgment must show that it is necessary in order to relieve the party of the risk of taking action that, without direction, would jeopardise their interests. It is not available where the parties rights and liabilities have already accrued. In this case, the event giving rise to the defendant’s putative liability had already occurred. The declaratory judgment process would not be an appropriate means of testing the defence that their duty of care was met by observing the requirements of the ‘baseball rule’.

Thomas v Atlanta Casualty Co, 253 Ga. App. 199, 588 SE.2d 432 (2001) and Porter v Houghton, 273 Ga. 407, 542 SE.2d 491 (2001), followed.

Judgment

The Court’s judgment is available here.

=====================================

* As to which, see South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39 and Coomer v Kansas City Royals (2014) H&FLR 2014-41

Posted on by Stephen Tuck

Coomer v Kansas City Royals (2014) H&FLR 2014-41

John Coomer v Kansas City Royals Baseball Corporation (2014) H&FLR 2014-41

Supreme Court of Missouri

24 June 2014

Coram: Court en banc (Judgment by Wilson J)

Appearing for the Appellant: Robert Tormohlen (of Lewis, Rice & Fingersh)
Appearing for the Respondent: Scott D. Hofer (of Foland, Wickens, Eisfelder, Roper & Hofer, PC )

Catchwords: Missouri – baseball – mascot – hotdog toss – baseball rule – injury – negligence – assumption of risk – inherent risk

Facts: On 8 September 2009 the plaintiff attended a baseball game at Kauffman Stadium between the Kansas City Royals and the Detroit Tigers. Since 2000 a feature of Royals’ home games has been the practice of their mascott (“Sluggerrr“)* tossing hotdogs to members of the crowd. The plaintiff saw Sluggerrr commence throwing hotdogs. He turned to look at the scoreboard and at that moment was hit in the face by a hotdog, causing injury to his left eye.

He commenced proceedings against the defendant alleging negligence and battery. A jury in the trial court returned a finding of no negligence: Coomer v Kansas City Royals Baseball Corporation (2011), The Pitch Blog, 9 March 2011. The plaintiff appealed.

Held: Allowing the appeal –

1. An implied primary assumption of risk by a plaintiff can be identified from their conduct and the surrounding circumstances, including whether a risk is inherent to the activity. Where this has occurred, a plaintiff who knowingly and voluntarily encounters that risk is barred from seeking compensation for resulting injuries. This defence is not affected by the acceptance in law of the principle of comparative fault

Krause v US Truck Co Inc, 787 SW.2d 708 (Mo. 1990), followed.
Gustafson v Benda, 661 SW.2d 11 (Mo. 1983), considered.

2. The “baseball rule”, whereby a ballpark owner is not considered negligent for failing to protect all seats in the park with wire netting and failing to warn a plaintiff about obvious hazards incidental to baseball, is an example of the principle of applied primary assumption of risk.**

Hudson v Kansas City Baseball Club, 164 SW.2d 318 (Mo. 1942); Anderson v Kansas City Baseball Club, 231 SW.2d 170 (Mo. 1950), considered.

3. Where a plaintiff’s injury results from a risk that is not an inherent part of watching baseball, or if the defendant’s negligence has increased the inherent risks and caused the injury, negligence may be found.

Lowe v California League of Professional Baseball, 56 Cal.App.4th 112 (1997), followed.

4. Whether a risk is ‘inherent’ for the purposes of implied primary assumption of risk is a question of law and not of fact. A risk is inherent if it is so intertwined with the relevant activity that it cannot be controlled or limited without abandoning the activity altogether. In this case the risk if injury from the ‘hotdog toss’ was not an inherent part of watching the Royals play baseball, and a risk which the plaintiff assumed by attending the game.

Loughran v The Phillies, 888 A.2d 872 (Pa. 2005); Cohen v Stirling Mets LP, 17 Misc.3d 218 (NY Sup. Ct. 2007), distinguished.

Judgment

The Court’s judgment is available here.

=================================
* Properly, one John Byron Shores.
** South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39.

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South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39

South Shore Baseball LLC and Anor v Juanita DeJesus (2014) H&FLR 2014-39

Supreme Court of Indiana

27 June 2014

Coram: Dickson CJ, Massa, Rucker, David and Rush JJ

Appearing for the Appellant (Defendant): James R Branit, Mitchell H Frazen, and Nicholas J Parolisi (of Litchfield Cavo LLP)
Appearing for the Appellee (Plaintiff): Walter J Alvarez, Duke T Escue, and David A Wilson (of Alvarez Law Office)
Appearing for an Amicus Curiae (Indianapolis Indians): Andrew B. Janutolo and RD Zink (of Goodin Abernathy)

Catchwords: Indiana – baseball – spectator – foul ball – injury – baseball rule – negligence – premises liability

Facts: On 23 May 2009 the plaintiff attended a minor-league baseball game in support of the South Shore RailCats. Warnings of the danger of foul balls leaving the field were printed on the plaintiff’s ticket, posted on a sign near her seat, and announced over a loudspeaker prior to the start of play. However, the plaintiff sat in a part of the stadium just outside of the are protected by the netting behind home plate. Early in the game the baseball left the playing field, striking the plaintiff and causing serious injuries.

The plaintiff brought proceedings against the operators of the RailCats on the basis that, by failing to extend the protective netting further, they had negligently failed to make the premises (US Steel Yard) reasonably safe for her as a business invitee.

The defendants applied for summary dismissal of the plaintiff’s claim. The trial court declined same: DeJesus v South Shore Baseball LLC (Lake Superior Court, Hawkins J, 16 March 2012, unreported). The defendants’ appeal was allowed: South Shore Baseball LLC v DeJesus, 982 NE.2d 1076 (Ind. Ct. App. 2013). The matter was then transferred to the Supreme Court of Indiana.

Held: Allowing the appeal and granting summary judgment for the defendants, that –

1. The ‘Baseball Rule’, whereby a ballpark operator is protected from liability for injuries from an object leaving the playing field if they have provided screening behind home plate sufficient to meet ordinary demand for protected seating, is not part of the common law of Indiana.

Emhardt v Perry Stadium, 46 NE.2d 704, 113 Ind. App. 197 (1943), doubted.

2. The applicable principle of premises liability law in this case is that a possessor of land is liable for harm to invitees caused by a condition of the land if the possessor should reasonably know of the condition and realise it involves an unreasonable risk of harm to the invitees, and should expect that the invitees will not identify the danger or protect themselves against it, and fails to take reasonable care to protect the invitees from the danger. There was no reason for the defendants to consider that the plaintiff would not realise the danger or protect herself against it.

Pfenning v Lineman, 947 NE.2d 392 (Ind. 2011), applied.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

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.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

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.

Judgment

The court’s judgment is available here.