Download - STANDARD OF CARE
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STANDARD OF CARESTANDARD OF CARE
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“Life of the Community Defines Legal Standard for Negligence Liability
“Life of the Community Defines Legal Standard for Negligence Liability
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The standard of conduct of a reasonable person may be established by legislative enactment, administrative regulation, or judicial decision.
The standard of conduct of a reasonable person may be established by legislative enactment, administrative regulation, or judicial decision.
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In the absence of such legislation, regulation, or judicial decision, the trial judge or jury will apply this "reasonable person under the circumstances" concept to determine the applicable legal standard of care in a particular case (Restatement § 285).
In the absence of such legislation, regulation, or judicial decision, the trial judge or jury will apply this "reasonable person under the circumstances" concept to determine the applicable legal standard of care in a particular case (Restatement § 285).
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In determining whether conduct is negligent, the customs of the community, or others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable person would not follow them.
In determining whether conduct is negligent, the customs of the community, or others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable person would not follow them.
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For a custom or such common practices to be relevant on the issue of negligence, they must reasonably be brought home to the actor's locality, and must be so general, or so well known, that the actor must be charged with knowledge of them, or with negligence in remaining ignorant (Restatement § 295).
For a custom or such common practices to be relevant on the issue of negligence, they must reasonably be brought home to the actor's locality, and must be so general, or so well known, that the actor must be charged with knowledge of them, or with negligence in remaining ignorant (Restatement § 295).
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WAGONER v. WATERSLIDE, INC.(Utah App. 1987) Unreasonable Risk?- Jury Issue
WAGONER v. WATERSLIDE, INC.(Utah App. 1987) Unreasonable Risk?- Jury Issue
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P injured riding down D's waterslide; foot hanging over sidecut toe on unfinished edge of slide.
Jury Verdict for D.
P injured riding down D's waterslide; foot hanging over sidecut toe on unfinished edge of slide.
Jury Verdict for D.
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Whether waterslide unreasonable risk of harm to D's patrons.
Jury issue whether exposed edge on slide unreasonable or reasonable.
Whether waterslide unreasonable risk of harm to D's patrons.
Jury issue whether exposed edge on slide unreasonable or reasonable.
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Standards to determine unreasonable risks in the life of community.
Standards to determine unreasonable risks in the life of community.
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Unreasonable risks, those which society consider sufficiently great to demand preventive measures.
Unreasonable risks, those which society consider sufficiently great to demand preventive measures.
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Reasonable care:repair or warning of actual condition and risk involved.
Reasonable care:repair or warning of actual condition and risk involved.
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Duty only if unreasonable risk.Jury found no unreasonable risk, no duty. AFFIRMED.
Duty only if unreasonable risk.Jury found no unreasonable risk, no duty. AFFIRMED.
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Ortego v. Jefferson Davis Parish School BoardLa.App. 1995
CPSCPlayground Safety Standards or Guidelines?
Ortego v. Jefferson Davis Parish School BoardLa.App. 1995
CPSCPlayground Safety Standards or Guidelines?
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P alleged slide unreasonableviolated design and safety standardsP alleged slide unreasonableviolated design and safety standards
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Consumer Product Safety Commission (CPSC)
D: CPSC merely suggested guidelinesrepresented ideal, rather than norm
Consumer Product Safety Commission (CPSC)
D: CPSC merely suggested guidelinesrepresented ideal, rather than norm
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D: should not be used to determine whether unreasonably dangerousjury found slide NOT unreasonably dangerous
D: should not be used to determine whether unreasonably dangerousjury found slide NOT unreasonably dangerous
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McCarthy v. StateN.Y. A.D. 1990Legislated Standardsvs. Agency Rules?
McCarthy v. StateN.Y. A.D. 1990Legislated Standardsvs. Agency Rules?
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P fall from playground horizontal ladderalleged negligence in design and/or maintenance of ladderState claims court dismissed claim
P fall from playground horizontal ladderalleged negligence in design and/or maintenance of ladderState claims court dismissed claim
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Appeals: P's expert's testimony clearly inadequateAppeals: P's expert's testimony clearly inadequate
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Consumer Product Safety Commission (CPSC) Public Playground Safety Guidelinesnot mandatory or meant to be the exclusive standards for playground safety
Consumer Product Safety Commission (CPSC) Public Playground Safety Guidelinesnot mandatory or meant to be the exclusive standards for playground safety
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STANDARD OF CARE EVIDENCE IN PLAYGROUND SAFETY GUIDELINES
ELLEDGE v. RICHLAND/LEXINGTON SCHOOL DISTRICT FIVE
S.C. App.
STANDARD OF CARE EVIDENCE IN PLAYGROUND SAFETY GUIDELINES
ELLEDGE v. RICHLAND/LEXINGTON SCHOOL DISTRICT FIVE
S.C. App.
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representative, who was not trained or licensed as an engineer, eventually modified the monkey bars by removing the bench and lowering the bars.
representative, who was not trained or licensed as an engineer, eventually modified the monkey bars by removing the bench and lowering the bars.
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thin side bars were not intended as a walking surface,
neither handrails nor a non-slip surface was added to the "new" monkey bars.
thin side bars were not intended as a walking surface,
neither handrails nor a non-slip surface was added to the "new" monkey bars.
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foot slipped on a narrow bar, causing her to fall, and her right leg became trapped between the bars.
foot slipped on a narrow bar, causing her to fall, and her right leg became trapped between the bars.
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testimony and/or documentary evidence" relating to the Consumer Products Safety Commission's (CPSC) guidelines for playground safety
or the American Society for Testing and Materials' (ASTM) standards for playground equipment.
testimony and/or documentary evidence" relating to the Consumer Products Safety Commission's (CPSC) guidelines for playground safety
or the American Society for Testing and Materials' (ASTM) standards for playground equipment.
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CPSC guidelines and ASTM standards, evidence was relevant to establish the appropriate standard of care.
We agree.
CPSC guidelines and ASTM standards, evidence was relevant to establish the appropriate standard of care.
We agree.
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Evidence of industry standards, customs, and practices is "often highly probative when defining a standard of care."
Evidence of industry standards, customs, and practices is "often highly probative when defining a standard of care."
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Safety standards promulgated by government or industry organizations in particular are relevant to the standard of care for negligence.
Safety standards promulgated by government or industry organizations in particular are relevant to the standard of care for negligence.
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Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence...
Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence...
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Courts have become increasingly appreciative of the value of national safety codes and other guidelines issued by governmental and voluntary associations
Courts have become increasingly appreciative of the value of national safety codes and other guidelines issued by governmental and voluntary associations
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to assist the trier of fact in applying the standard of due care in negligence cases. to assist the trier of fact in applying the standard of due care in negligence cases.
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A safety code ordinarily represents a consensus of opinion carrying the approval of a significant segment of an industry,
A safety code ordinarily represents a consensus of opinion carrying the approval of a significant segment of an industry,
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not introduced as substantive law but most often as illustrative evidence of safety practices or rules generally prevailing in the industry
not introduced as substantive law but most often as illustrative evidence of safety practices or rules generally prevailing in the industry
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provides support for expert testimony concerning the proper standard of care.provides support for expert testimony concerning the proper standard of care.
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[E]vidence of standards promulgated by industry, trade, or regulatory groups or agencies may be relevant and admissible to aid the trier of fact in determining the standard of care in a negligence action
[E]vidence of standards promulgated by industry, trade, or regulatory groups or agencies may be relevant and admissible to aid the trier of fact in determining the standard of care in a negligence action
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even though the standards have not been imposed by statute or promulgated by a regulatory body
and therefore do not have the force of law.
even though the standards have not been imposed by statute or promulgated by a regulatory body
and therefore do not have the force of law.
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Violation of standards in such private safety codes is evidence on the issue of negligence
but not negligence per se [i.e., in and of itself; conclusive proof]...
Violation of standards in such private safety codes is evidence on the issue of negligence
but not negligence per se [i.e., in and of itself; conclusive proof]...
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City of Miami v. AmellerFla. 1985Violate Agency's Own Standards?
City of Miami v. AmellerFla. 1985Violate Agency's Own Standards?
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P alleged City negligent in placing monkey bars in public park over hard-packed ground surface
failed to use one of recommended standard cushioning materials under monkey bars
P alleged City negligent in placing monkey bars in public park over hard-packed ground surface
failed to use one of recommended standard cushioning materials under monkey bars
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P charged city violated playground industry,as well as own, standardsfor proper cushioning ground surface under monkey bars
P charged city violated playground industry,as well as own, standardsfor proper cushioning ground surface under monkey bars
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City has duty to maintain parks in condition reasonably safe for public useCity has duty to maintain parks in condition reasonably safe for public use
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not insurer of safety of all those who use free public parksstandard is negligence, not strict liability
not insurer of safety of all those who use free public parksstandard is negligence, not strict liability
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Rosario v. New York CityN.Y.A.D. 1990Asphalt Dangerous Condition?Playground Surfacing Regulation
Rosario v. New York CityN.Y.A.D. 1990Asphalt Dangerous Condition?Playground Surfacing Regulation
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7/85, P, 7 yrs, fell 5-7.5ft from slide on asphalt surface
P broke arm; alleged D negligent in failing to provide cushioned surface beneath slide
7/85, P, 7 yrs, fell 5-7.5ft from slide on asphalt surface
P broke arm; alleged D negligent in failing to provide cushioned surface beneath slide
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ISSUE: whether D breached standard of care to protect children from injury due to falls
by failing to install cushioned surface around playground equipment
ISSUE: whether D breached standard of care to protect children from injury due to falls
by failing to install cushioned surface around playground equipment
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No authority in jurisdiction for liability based on existence of hard, artificial surface beneath playground equipment
No authority in jurisdiction for liability based on existence of hard, artificial surface beneath playground equipment
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Traditional rule: properly constructed & maintained asphalt surfacedoes not constitute an unsafe & dangerous conditionso as to subject the owner of a playground to liability
Traditional rule: properly constructed & maintained asphalt surfacedoes not constitute an unsafe & dangerous conditionso as to subject the owner of a playground to liability
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P's experts cited D's specifications for 1.5" padding under playground equipmentdate, scope, & application to existing City playgrounds not disclosed
P's experts cited D's specifications for 1.5" padding under playground equipmentdate, scope, & application to existing City playgrounds not disclosed
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Questions as to existence of standard from which City duty might be derivedand whether City complied with standardprecludes dismissal
Questions as to existence of standard from which City duty might be derivedand whether City complied with standardprecludes dismissal
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On alleged facts, if proven, rational jury could find applicable standard in effect at time of injuryand City failed to comply with its own standardreversed, new trial ordered
On alleged facts, if proven, rational jury could find applicable standard in effect at time of injuryand City failed to comply with its own standardreversed, new trial ordered
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Blankenship v. Peoria Park DistrictIll.App. 1995Statutory Immunity Defines Legal Duty Over Internal Rules
Blankenship v. Peoria Park DistrictIll.App. 1995Statutory Immunity Defines Legal Duty Over Internal Rules
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Park District rules & regulationsrequired lifeguard to be present at all times during posted swim hoursto direct & safeguard swimmers
Park District rules & regulationsrequired lifeguard to be present at all times during posted swim hoursto direct & safeguard swimmers
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Violation of a statute or ordinance designed to protect human life or propertyis prima facie (on its face, in and of itself) evidence of negligence
Violation of a statute or ordinance designed to protect human life or propertyis prima facie (on its face, in and of itself) evidence of negligence
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Legal duty normally not established through rules or internal guidelinesfailure to comply with self-imposed regulationsdoes not impose on municipal bodies & employees a legal duty
Legal duty normally not established through rules or internal guidelinesfailure to comply with self-imposed regulationsdoes not impose on municipal bodies & employees a legal duty
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Issue: whether Park District immune under Tort Immunity ActAct grants general immunity from liability arising from a failure to supervise
Issue: whether Park District immune under Tort Immunity ActAct grants general immunity from liability arising from a failure to supervise
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Here, complete absence of supervision, not mere inattention or lack of supervisionCourt: conclude no supervision within meaning of Tort Immunity Act
Here, complete absence of supervision, not mere inattention or lack of supervisionCourt: conclude no supervision within meaning of Tort Immunity Act
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BRADEN v. WORKMANMich.App. 1985Custom - Certain, Uniform, & Notorious?
BRADEN v. WORKMANMich.App. 1985Custom - Certain, Uniform, & Notorious?
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P, age 18, broke neck head-long dive into D's manmade lake. P: negligence no lifeguard, no backboard.Verdict for D.
P, age 18, broke neck head-long dive into D's manmade lake. P: negligence no lifeguard, no backboard.Verdict for D.
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P's expert: lifeguard or trained person for less than 25 & backboard required, admitted not universally implemented.D: expert's recommendations seldom used at Mich lakes.
P's expert: lifeguard or trained person for less than 25 & backboard required, admitted not universally implemented.D: expert's recommendations seldom used at Mich lakes.
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Despite Red Cross & other guidelines, standardsmajority state park swimming facilities, no lifeguards or backboards.
Despite Red Cross & other guidelines, standardsmajority state park swimming facilities, no lifeguards or backboards.
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Absent expressed requirement in law or regulationjury determines what, if any, lifesaving persons & equipment necessary.
Absent expressed requirement in law or regulationjury determines what, if any, lifesaving persons & equipment necessary.
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Industry customadmissible to prove negligenceif custom certain, uniform, & notorious.
Industry customadmissible to prove negligenceif custom certain, uniform, & notorious.
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1975 standards not notoriouslimited distribution no campgrounds.AFFIRMED.
1975 standards not notoriouslimited distribution no campgrounds.AFFIRMED.
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Hamesv. State of TennesseeTenn. 1991Industry Standard Requiring Weather Warnings?
Hamesv. State of TennesseeTenn. 1991Industry Standard Requiring Weather Warnings?
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P's husband, 36, struck by lightning on state park golf course
No effort made to clear course, no warnings.
P's husband, 36, struck by lightning on state park golf course
No effort made to clear course, no warnings.
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Course operated under USGA rules
USGA makes suggestions to warn golfers
of lightning danger
Course operated under USGA rules
USGA makes suggestions to warn golfers
of lightning danger
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USGA recommends posting notices outlining dangers & precautions to minimize danger
USGA recommends posting notices outlining dangers & precautions to minimize danger
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Expert testimony: no recognized standard existed that golf courses be equipped with lightning proof shelters, or with warning devices
Expert testimony: no recognized standard existed that golf courses be equipped with lightning proof shelters, or with warning devices
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Although some golf courses in state parks are equipped with sheltersfew had warning devices.
Although some golf courses in state parks are equipped with sheltersfew had warning devices.
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8 courses operated by State3 have weather shelters, not lightning proof.
8 courses operated by State3 have weather shelters, not lightning proof.
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Golf Pro testified had not played or practiced where warning sirens in placesuch devices are used only to stop tournaments
Golf Pro testified had not played or practiced where warning sirens in placesuch devices are used only to stop tournaments
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Claims Com:no industry standard requiring storm shelters or warning devices
Claims Com:no industry standard requiring storm shelters or warning devices
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Common knowledge tells one that lightning is dangerousthe absence of a horn is not concurrent negligence
Common knowledge tells one that lightning is dangerousthe absence of a horn is not concurrent negligence
![Page 75: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/75.jpg)
No evidence industry standard required a policy to clear courseNo evidence industry standard required a policy to clear course
![Page 76: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/76.jpg)
absence of policy did not create dangerous condition on courseabsence of policy did not create dangerous condition on course
![Page 77: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/77.jpg)
No signs, but common knowledge tells one that lightning is dangerousNo signs, but common knowledge tells one that lightning is dangerous
![Page 78: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/78.jpg)
Customary conduct, while not conclusive, can gauge whether ordinary care exercised by D & P
Customary conduct, while not conclusive, can gauge whether ordinary care exercised by D & P
![Page 79: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/79.jpg)
USGA rules are applicable to tournament play; do not apply hereUSGA rules are applicable to tournament play; do not apply here
![Page 80: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/80.jpg)
D's conduct did not fall below applicable standard of reasonable carethus no negligence.
REVERSED & DISMISSED
D's conduct did not fall below applicable standard of reasonable carethus no negligence.
REVERSED & DISMISSED
![Page 81: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/81.jpg)
Maussner v. Atlantic City Country ClubNew Jersey, 1997Chosen Lightning Protection Must be Properly Utilized
Maussner v. Atlantic City Country ClubNew Jersey, 1997Chosen Lightning Protection Must be Properly Utilized
![Page 82: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/82.jpg)
Signs posted re "our golf course evacuation plan" implemented"our weather monitoring system"
Signs posted re "our golf course evacuation plan" implemented"our weather monitoring system"
![Page 83: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/83.jpg)
Act of God - unusual, extra ordinary & unexpectednot prevented by any amount of foresight
Act of God - unusual, extra ordinary & unexpectednot prevented by any amount of foresight
![Page 84: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/84.jpg)
Whether D's negligence coincides with an Act of Godmodern technology rendered lightning storms more predictable
Whether D's negligence coincides with an Act of Godmodern technology rendered lightning storms more predictable
![Page 85: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/85.jpg)
Issue: Whether D properly implemented its own safety proceduresIssue: Whether D properly implemented its own safety procedures
![Page 86: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/86.jpg)
where D has taken steps to protect patrons against lightningduty of reasonable care to take steps correctly
where D has taken steps to protect patrons against lightningduty of reasonable care to take steps correctly
![Page 87: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/87.jpg)
Duty to post sign detailing what, if any, safety procedures utilizedif none, posted so, use at own riskif evacuation plan, must be reasonable & posted
Duty to post sign detailing what, if any, safety procedures utilizedif none, posted so, use at own riskif evacuation plan, must be reasonable & posted
![Page 88: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/88.jpg)
Bier v. City of New Philadelphia
Bier v. City of New Philadelphia
![Page 89: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/89.jpg)
Death & injuries resulting from lightning strike on rented picnic shelter with metal roof
Summary judgment to City; no liability for "Act of God"
Death & injuries resulting from lightning strike on rented picnic shelter with metal roof
Summary judgment to City; no liability for "Act of God"
![Page 90: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/90.jpg)
P's expert affidavit: outdoor shelters not protected by a lightning protection system are attractors to lightning strikes
P's expert affidavit: outdoor shelters not protected by a lightning protection system are attractors to lightning strikes
![Page 91: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/91.jpg)
reasonable person aware of need for lightning protection systems to be installed on metal-roofed outdoor bldgs used by public
reasonable person aware of need for lightning protection systems to be installed on metal-roofed outdoor bldgs used by public
![Page 92: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/92.jpg)
Proximate Cause could include defendant negligence concurrent with Act of GodProximate Cause could include defendant negligence concurrent with Act of God
![Page 93: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/93.jpg)
not Act of God if proper care & diligence on defendant's part would have avoided act
not Act of God if proper care & diligence on defendant's part would have avoided act
![Page 94: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/94.jpg)
Reasonable MindsCould Differ.
Jury could reasonably find negligence in not installing lightning protection on metal-roofed shelter was concurrent cause
Reasonable MindsCould Differ.
Jury could reasonably find negligence in not installing lightning protection on metal-roofed shelter was concurrent cause
![Page 95: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/95.jpg)
If duty & breach, Defendants may show that injuries would still have occurred in spite of any preventive measures taken
If so, negligence not proximate cause of injury.
If duty & breach, Defendants may show that injuries would still have occurred in spite of any preventive measures taken
If so, negligence not proximate cause of injury.
![Page 96: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/96.jpg)
Lightning interceding superseding cause, relieving D of liability for negligence.
REVERSED & REMANDED
Lightning interceding superseding cause, relieving D of liability for negligence.
REVERSED & REMANDED
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Sallis v. Bossier Cityslide over steel shaft in basepath
Sallis v. Bossier Cityslide over steel shaft in basepath
![Page 98: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/98.jpg)
Whether unreasonable risk of harm known to City
shaft did not have protective rubber coveringhidden from view just below dirt
Whether unreasonable risk of harm known to City
shaft did not have protective rubber coveringhidden from view just below dirt
![Page 99: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/99.jpg)
Base anchors one method used to secure basesside stakes bent, replaced by stakes of heavier guage metal
Base anchors one method used to secure basesside stakes bent, replaced by stakes of heavier guage metal
![Page 100: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/100.jpg)
3 sets of stakes for dimensions of baseball & softballrubber caps on unused base anchorsto keep dirt our & prevent injuries
3 sets of stakes for dimensions of baseball & softballrubber caps on unused base anchorsto keep dirt our & prevent injuries
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City rented field to softball assn.but retained responsibility for field maintenence
City rented field to softball assn.but retained responsibility for field maintenence
![Page 102: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/102.jpg)
Fields dragged, but P&R dept did not check whether protective caps displaced, oranchor shafts exposed by prior games or field maintenance
Fields dragged, but P&R dept did not check whether protective caps displaced, oranchor shafts exposed by prior games or field maintenance
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Unprotected steel shaft in basepath constitutes unreasonable risk of harmwear & tear on field common
Unprotected steel shaft in basepath constitutes unreasonable risk of harmwear & tear on field common
![Page 104: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/104.jpg)
No evidence of similar multiple peg use (3) in other recreational programs, or info re safety of this type of installation
No evidence of similar multiple peg use (3) in other recreational programs, or info re safety of this type of installation
![Page 105: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/105.jpg)
Players & Assn unaware of multiple set of anchors installedPlayers & Assn unaware of multiple set of anchors installed
![Page 106: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/106.jpg)
City knew, or should have known, unprotected base anchorsposed unreasonable risk of harmfailed to implement procedure to insure covering of unused shafts
City knew, or should have known, unprotected base anchorsposed unreasonable risk of harmfailed to implement procedure to insure covering of unused shafts
![Page 107: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/107.jpg)
P&R maintenance employees: occasionally struck or ran over base anchorswhile mowing & grading fields
P&R maintenance employees: occasionally struck or ran over base anchorswhile mowing & grading fields
![Page 108: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/108.jpg)
Coaches & officials not informed of additional base anchorsCoaches & officials not informed of additional base anchors
![Page 109: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/109.jpg)
Nor were unused base anchors checkedTo determine if weather, field maintenance, or gamesuncovered unused stakes or dilodged protective coverings
Nor were unused base anchors checkedTo determine if weather, field maintenance, or gamesuncovered unused stakes or dilodged protective coverings
![Page 110: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/110.jpg)
Asn & Asn director had no knowledge of dangerous conditionCity had never told Asn of base anchorsin base path
Asn & Asn director had no knowledge of dangerous conditionCity had never told Asn of base anchorsin base path
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Injury not caused by Asn playing on muddy fieldbut sliding into unprotected base anchorsoutside scope of danger playing on muddy field
Injury not caused by Asn playing on muddy fieldbut sliding into unprotected base anchorsoutside scope of danger playing on muddy field
![Page 112: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/112.jpg)
Shipleyv. Recreation & Park Commission of East Baton Rouge
Safer Alternative Exists in Real World?Legal Standard for Negligence LiabilityLouisiana Appellate Court, 1990
Shipleyv. Recreation & Park Commission of East Baton Rouge
Safer Alternative Exists in Real World?Legal Standard for Negligence LiabilityLouisiana Appellate Court, 1990
![Page 113: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/113.jpg)
Issue: whether anchored base used in softball game was unreasonably dangerous
Issue: whether anchored base used in softball game was unreasonably dangerous
![Page 114: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/114.jpg)
Plaintiff's Expert: all anchored bases dangerousshould use unsecured throw down base, orbase similar to home plate, i.e., flat to ground
Plaintiff's Expert: all anchored bases dangerousshould use unsecured throw down base, orbase similar to home plate, i.e., flat to ground
![Page 115: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/115.jpg)
Expert admitted recommended bases would requirechange in rulesto accommodate base movement, players sliding past base
Expert admitted recommended bases would requirechange in rulesto accommodate base movement, players sliding past base
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Court: while such bases may make softball saferwould NOT be consideredin determining whether this base unreasonably dangerous
Court: while such bases may make softball saferwould NOT be consideredin determining whether this base unreasonably dangerous
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Court: would only examine this base within rules of actual gameNOT imaginary game which does not exist
Court: would only examine this base within rules of actual gameNOT imaginary game which does not exist
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Court: this base conformed to industry standardsASA required bases firmly affixed to ground, not thicker than 5 inches
Court: this base conformed to industry standardsASA required bases firmly affixed to ground, not thicker than 5 inches
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Court: this anchored base had same dimensions of strapped down baserecommended by plaintiff's expert
Court: this anchored base had same dimensions of strapped down baserecommended by plaintiff's expert
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Court: evidence of "safer alternatives" at time of accidentNOT sufficient to establish anchored base was unreasonably dangerous
Court: evidence of "safer alternatives" at time of accidentNOT sufficient to establish anchored base was unreasonably dangerous
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Some alternatives NOT available at time of accidentSome alternatives NOT available at time of accident
![Page 122: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/122.jpg)
KOPROWSKI v. MANATEE COUNTYFla.App. 1988
Common Practice Ignored, Injury Foreseeable
KOPROWSKI v. MANATEE COUNTYFla.App. 1988
Common Practice Ignored, Injury Foreseeable
![Page 123: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/123.jpg)
P struck by large rescue-type surfboard (10'long, 30-50 lbs.)P struck by large rescue-type surfboard (10'long, 30-50 lbs.)
![Page 124: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/124.jpg)
P walking past guard stand; guard left board leaning against stand on windy dayairborne board struck P's leg.
P walking past guard stand; guard left board leaning against stand on windy dayairborne board struck P's leg.
![Page 125: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/125.jpg)
Guard conceded possibility that wind could have blown board 25' from where he placed it.
Guard conceded possibility that wind could have blown board 25' from where he placed it.
![Page 126: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/126.jpg)
Common practice to prop rescue boards against stand, but if negligently placed could flip over.
Boards had been observed being blown 6'.
Common practice to prop rescue boards against stand, but if negligently placed could flip over.
Boards had been observed being blown 6'.
![Page 127: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/127.jpg)
Negligence: NOT necessary that one be able to foresee the exact nature of the harm done
it is only necessary to foresee that some injury is likely to result
Negligence: NOT necessary that one be able to foresee the exact nature of the harm done
it is only necessary to foresee that some injury is likely to result
![Page 128: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/128.jpg)
Guard stated, when windy, boards locked up or laid flat
Guard conceded boards windblown when not properly secured,previous instances.
Guard stated, when windy, boards locked up or laid flat
Guard conceded boards windblown when not properly secured,previous instances.
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Later Case StudiesLater Case Studies
![Page 130: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/130.jpg)
DUTY TO FOLLOW ESTABLISHED PROCEDURES TO WARN
BEACHGOERS OF LIGHTNING STORMS
DUTY TO FOLLOW ESTABLISHED PROCEDURES TO WARN
BEACHGOERS OF LIGHTNING STORMS
![Page 131: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/131.jpg)
Seelbinder v. County of Volusia, (Fla.App. 05/31/2002),
forty-seven-year-old plaintiff Marlene Seelbinder (Seelbinder) was seriously injured when she was struck by lightning as she stood on a public beach
Seelbinder v. County of Volusia, (Fla.App. 05/31/2002),
forty-seven-year-old plaintiff Marlene Seelbinder (Seelbinder) was seriously injured when she was struck by lightning as she stood on a public beach
![Page 132: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/132.jpg)
once a landowner assumes a duty to provide warnings of weather conditions to those authorized to use the premises,
a legal duty may arise to implement such measures in a non-negligent fashion.
once a landowner assumes a duty to provide warnings of weather conditions to those authorized to use the premises,
a legal duty may arise to implement such measures in a non-negligent fashion.
![Page 133: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/133.jpg)
The County has undertaken to give beachgoers warnings of the risk of lightning that relies on human observation and weather station monitoring.
The County has undertaken to give beachgoers warnings of the risk of lightning that relies on human observation and weather station monitoring.
![Page 134: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/134.jpg)
Once an identified storm risk is deemed sufficient to warrant warnings, the procedure prioritizes those persons in the water.
Once an identified storm risk is deemed sufficient to warrant warnings, the procedure prioritizes those persons in the water.
![Page 135: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/135.jpg)
There was no evidence offered that the County's employees failed to exercise reasonable care in executing the procedure, merely that the procedure failed to protect Seelbinder.
There was no evidence offered that the County's employees failed to exercise reasonable care in executing the procedure, merely that the procedure failed to protect Seelbinder.
![Page 136: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/136.jpg)
ENTRAPMENT DANGER IN PLAYGROUND REPORTED BUT NOT CORRECTED
ENTRAPMENT DANGER IN PLAYGROUND REPORTED BUT NOT CORRECTED
![Page 137: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/137.jpg)
Clark v. Fair Oaks Recreation and Park District, 106 Cal.App.4th 336, 130 Cal.Rptr.2d 633 (Cal.App. Dist.3 02/14/2003), plaintiff Burgin Clark, aged 10, broke his leg in an accident on playground equipment owned by defendant
Clark v. Fair Oaks Recreation and Park District, 106 Cal.App.4th 336, 130 Cal.Rptr.2d 633 (Cal.App. Dist.3 02/14/2003), plaintiff Burgin Clark, aged 10, broke his leg in an accident on playground equipment owned by defendant
![Page 138: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/138.jpg)
October 12, 1998, District Park Supervisor Rodney Melton, a certified playground inspector, performed a safety audit of Village Park's equipment.
October 12, 1998, District Park Supervisor Rodney Melton, a certified playground inspector, performed a safety audit of Village Park's equipment.
![Page 139: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/139.jpg)
orally and in writing, that he had found many violations of the 1991 CPSC guidelines that could cause life-threatening or permanently disabling accidents ("priority one" hazards),
orally and in writing, that he had found many violations of the 1991 CPSC guidelines that could cause life-threatening or permanently disabling accidents ("priority one" hazards),
![Page 140: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/140.jpg)
including the risk of entrapment from the improper spacing between the rungs of the arch climber.
including the risk of entrapment from the improper spacing between the rungs of the arch climber.
![Page 141: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/141.jpg)
District argued that “the 1991 guidelines did not shift the focus from head entrapment to entrapment per se; rather, both sets of guidelines, correctly understood, spoke only to head entrapment.”
District argued that “the 1991 guidelines did not shift the focus from head entrapment to entrapment per se; rather, both sets of guidelines, correctly understood, spoke only to head entrapment.”
![Page 142: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/142.jpg)
“[t]o establish that the injury-causing risk created by the dangerous condition was reasonably foreseeable, the plaintiff need show only that the general character of the event or harm was foreseeable, not that the precise nature of the accident was so.”
“[t]o establish that the injury-causing risk created by the dangerous condition was reasonably foreseeable, the plaintiff need show only that the general character of the event or harm was foreseeable, not that the precise nature of the accident was so.”
![Page 143: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/143.jpg)
appeals court concurred with the trial court’s finding that “the arch climber presented a life-threatening hazard of ‘entrapment’; thus, an accident in which entrapment caused serious injury was reasonably foreseeable.”
appeals court concurred with the trial court’s finding that “the arch climber presented a life-threatening hazard of ‘entrapment’; thus, an accident in which entrapment caused serious injury was reasonably foreseeable.”
![Page 144: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/144.jpg)
1991 guidelines' definition of the word entrapment includes “any condition that impedes withdrawal of a body or bodily part that has penetrated an opening.”
1991 guidelines' definition of the word entrapment includes “any condition that impedes withdrawal of a body or bodily part that has penetrated an opening.”
![Page 145: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/145.jpg)
Melton and Hinson testified in videotaped depositions that, in the case of an arch ladder, the risk of injury would most likely be to a leg.
Melton and Hinson testified in videotaped depositions that, in the case of an arch ladder, the risk of injury would most likely be to a leg.
![Page 146: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/146.jpg)
appeals court, found substantial evidence supported the trial court's finding that “the injury which occurred was a reasonably foreseeable risk produced by the dangerous condition of the arch climber.”
appeals court, found substantial evidence supported the trial court's finding that “the injury which occurred was a reasonably foreseeable risk produced by the dangerous condition of the arch climber.”
![Page 147: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/147.jpg)
FEAR DRIVES NON-WOOD BASEBALL BAT CONTROVERSYFEAR DRIVES NON-WOOD BASEBALL BAT CONTROVERSY
![Page 148: STANDARD OF CARE](https://reader035.vdocument.in/reader035/viewer/2022070411/568147ce550346895db50bf3/html5/thumbnails/148.jpg)
2006 Bill has been reintroduced for 2008 in the New Jersey State Assembly (Bill No. 3388) to enact "Steven's Law" prohibiting the use of non-wood bats in certain organized games in which minors are participants
2006 Bill has been reintroduced for 2008 in the New Jersey State Assembly (Bill No. 3388) to enact "Steven's Law" prohibiting the use of non-wood bats in certain organized games in which minors are participants
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Sanchez v. Hillerich & Bradsby Co., 104 Cal. App. 4th 703; 128 Cal. Rptr. 2d 529 (12/19/2002),
Sanchez v. Hillerich & Bradsby Co., 104 Cal. App. 4th 703; 128 Cal. Rptr. 2d 529 (12/19/2002),
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alleging that the design and use of this particular bat significantly increased the inherent risk in the sport of baseball that a pitcher would be hit by a line drive.
alleging that the design and use of this particular bat significantly increased the inherent risk in the sport of baseball that a pitcher would be hit by a line drive.
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appeals court found Sanchez had presented sufficient evidence to establish that use of this particular bat significantly increased the inherent risk that a pitcher would be hit by a line drive and that the unique design properties of this bat were the cause of his injuries.
appeals court found Sanchez had presented sufficient evidence to establish that use of this particular bat significantly increased the inherent risk that a pitcher would be hit by a line drive and that the unique design properties of this bat were the cause of his injuries.
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undisputed that the bat in question, the Air Attack 2, was designed to cause the ball to come off the bat at a higher launch speed than with wooden bats and older metal bats.
undisputed that the bat in question, the Air Attack 2, was designed to cause the ball to come off the bat at a higher launch speed than with wooden bats and older metal bats.
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1998 correspondence from the NCAA indicated that the Baseball Rules Committee was unanimously convinced that bat performance was indeed a safety risk to pitchers and infielders
1998 correspondence from the NCAA indicated that the Baseball Rules Committee was unanimously convinced that bat performance was indeed a safety risk to pitchers and infielders
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April 5, 2002, CPSC determined "available incident data" was "not adequate to show increasing injuries to pitchers over the period of time that bat performance increased."
April 5, 2002, CPSC determined "available incident data" was "not adequate to show increasing injuries to pitchers over the period of time that bat performance increased."
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CPSC found data from other sources, including the NCAA and Little League, was not "clear or detailed enough to determine that an increase in injuries has occurred with an increase in bat performance."
CPSC found data from other sources, including the NCAA and Little League, was not "clear or detailed enough to determine that an increase in injuries has occurred with an increase in bat performance."
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CPSC concluded that "available incident data are not sufficient to indicate that non-wood bats may pose an unreasonable risk of injury.“
CPSC concluded that "available incident data are not sufficient to indicate that non-wood bats may pose an unreasonable risk of injury.“
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United States Baseball v. City of New York, 509 F. Supp. 2d 285 (S.D.N.Y. 2007),
United States Baseball v. City of New York, 509 F. Supp. 2d 285 (S.D.N.Y. 2007),
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whether the New York City Council acted constitutionally by excluding the use of metal bats by high school age students use in competitive baseball games.
whether the New York City Council acted constitutionally by excluding the use of metal bats by high school age students use in competitive baseball games.
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alleged that the City had no empirical evidence to show that the "Bat Ordinance" regulation would meet the stated safety objective, i.e., to protect high school age students from the risk of injury.
alleged that the City had no empirical evidence to show that the "Bat Ordinance" regulation would meet the stated safety objective, i.e., to protect high school age students from the risk of injury.
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court would find the Bat Ordinance constitutional as long as there was "a rational relationship between the disparity of treatment and some legitimate government purpose."
court would find the Bat Ordinance constitutional as long as there was "a rational relationship between the disparity of treatment and some legitimate government purpose."
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court would uphold the legislative classification to ban metal bats "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."
court would uphold the legislative classification to ban metal bats "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification."
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appropriate role of the courts was not to "judge the wisdom, fairness, or logic of legislative choices.
appropriate role of the courts was not to "judge the wisdom, fairness, or logic of legislative choices.
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court found general agreement that "many existing metal and composite bats do produce more hits than wood bats."
court found general agreement that "many existing metal and composite bats do produce more hits than wood bats."
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city council could rationally determine that more hits with metal and composite bats could "result in an increased risk of injury to infielders from hard-struck balls."
city council could rationally determine that more hits with metal and composite bats could "result in an increased risk of injury to infielders from hard-struck balls."
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found "a conceivable rational relationship exists between the Bat Ordinance and the legitimate purpose of public safety,"
found "a conceivable rational relationship exists between the Bat Ordinance and the legitimate purpose of public safety,"
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"the link between a perceived danger and the Bat Ordinance" as "a classic legislative judgment that the City Council could constitutionally make.“
"the link between a perceived danger and the Bat Ordinance" as "a classic legislative judgment that the City Council could constitutionally make.“
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AGE APPROPRIATE PLAYGROUND SAFETY GUIDELINES
Ossip v. Village Bd. of Hastings-On-Hudson, (N.Y. Sup. Ct., 2006)
AGE APPROPRIATE PLAYGROUND SAFETY GUIDELINES
Ossip v. Village Bd. of Hastings-On-Hudson, (N.Y. Sup. Ct., 2006)
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under her mother’s supervision when she fell from a set of monkey rings in a playground operated and maintained by defendant Village
under her mother’s supervision when she fell from a set of monkey rings in a playground operated and maintained by defendant Village
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Village argued that the safety consultant had limited his opinion to criteria which applied to “playgrounds that are suitable for children 2 to 5 years of age.”
Village argued that the safety consultant had limited his opinion to criteria which applied to “playgrounds that are suitable for children 2 to 5 years of age.”
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Village argued that Ossip’s playground consultant had erroneously “failed to address the standards provided by CPSC Guidelines for playgrounds suitable for 5 to 12 years old.”
Village argued that Ossip’s playground consultant had erroneously “failed to address the standards provided by CPSC Guidelines for playgrounds suitable for 5 to 12 years old.”
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CPSC Handbook for Public Playground Safety differentiates between “preschool-age” children (two through 5 years) and “school-age” children (5 through 12 years).
CPSC Handbook for Public Playground Safety differentiates between “preschool-age” children (two through 5 years) and “school-age” children (5 through 12 years).
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Muriel was five years old at the time of this accident, one month short of her sixth birthday and just several weeks short of the start of kindergarten,”
Muriel was five years old at the time of this accident, one month short of her sixth birthday and just several weeks short of the start of kindergarten,”
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the court found the monkey rings met the appropriate standard for children 5 to 12 years old:
the court found the monkey rings met the appropriate standard for children 5 to 12 years old:
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no evidence of any negligence or an unreasonably dangerous condition on the playground at the time of Muriel’s injury, the state court dismissed Ossip’s negligence claims against the Village.
no evidence of any negligence or an unreasonably dangerous condition on the playground at the time of Muriel’s injury, the state court dismissed Ossip’s negligence claims against the Village.