Gray•Duffy Attorney Obtains Dismissal After Filing of Motion for Summary Judgment

November 2004

Rene M. Faucher of Gray•Duffy’s Encino office was recently involved in an interesting lawsuit filed by a stunt woman who claimed she was injured while playing the part in a show at an amusement park.

In the suit, filed in Los Angeles Superior Court, the Plaintiff described how she was sliding across the set in a birdcage-like apparatus suspended from a cable. The birdcage collided with a tower platform, inflicting severe injuries to the Plaintiff’s neck and back.

The Plaintiff was not an employee of amusement park, and had signed a liability waiver and acknowledgment agreement releasing the amusement park against any liability arising out of her activities at the amusement park; a release of liability; a hold harmless agreement and an agreement to assume all risks of personal injury relating to her audition or training.

Despite having signed these forms, the Plaintiff asserted that the tower stage and connecting cable were improperly designed and manufactured, and proceeded to file a premises liability suit.

Mr. Faucher filed a Motion for Summary Judgment (MSJ), arguing that contracts exempting responsibility for simple negligence or strict liability are not prohibited by law. Mr. Faucher also argued that the Plaintiff expressly agreed to assume all risk of personal injury sustained while participating in the show, and that the Plaintiff’s express agreement to assume all risk of personal injury sustained while participating in the show does not contravene public policy.

In his MSJ filing, Mr. Faucher also stated that a person may expressly agree to assume the risk of another person’s negligence and such an agreement is valid unless it contravenes public policy. There was no public interest as the show was merely a matter of entertainment.

Mr. Faucher’s MSJ touched upon the defining “public interest,” in light of the purpose of the show. He argued that the amusement park was not engaged in the performance of great importance to the public since the show was not a matter of practical necessity but rather of a matter of entertainment; the show is not in the same category as common carriers, public warehousemen or innkeepers; the amusement park did not possess a decisive advantage of bargaining strength over Plaintiff since she was able to seek employment elsewhere; the amusement park utilized a standardized contract of exculpation; and the Plaintiff was not placed under the control of the amusement park subject to the risk of carelessness as a patient in a hospital would be.

Two days prior to Plaintiff’s deadline to file her opposition, she agreed to dismiss the amusement park from the action for a waiver of costs.

Sherry Bendorf v. Advanced Entertainment Technology, et al, Los Angeles Superior Court Case No. EC037008.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.