Gray•Duffy Achieves Defense Victory in Catastrophic Injury Case

September 2009

Overview

Brian Plessala successfully demurred an amended complaint on behalf of a private property owner who assisted an entertainment company in an off-road rally adjacent to her land. If granted, the amended complaint would have put Mr. Plessala’s client under duty of care to an off-highway vehicle (OHV) rider who was struck by another OHV ricocheting after it was hit by a train during the off-road rally. The court sustained Mr. Plessala’s demurrer, without leave to amend, ending the litigation against his client.

Discussion

Aaron M. Tucker v. CBS Radio Stations, Inc.

The plaintiff was a participant in an off-road “rally” organized and promoted by an entertainment organization. The location of the rally was a sand dune recreation area open to OHVs including traditional dune buggies, motorcycles and quad-runners. Mr. Plessala’s client owned private property adjacent to the recreational land and assisted the entertainment organization in the rally and was alleged to be a joint venturer by the plaintiff.

Near the conclusion of the rally, the plaintiff and others met some congestion at one of the washes and attempted to cross over the tracks. The plaintiff successfully crossed the tracks in his OHV, but an OHV rider following the plaintiff got his OHV lodged in the tracks. The plaintiff dismounted his OHV and went back to assist the other rider, but an approaching train struck the OHV lodged in the tracks and the plaintiff was struck by pieces of the ricocheting OHV.

The plaintiff’s complaint alleged theories of negligence and premises liability against the entertainment company and Mr. Plessala’s client. Mr. Plessala sought summary judgment denying any duty of care to the plaintiff and the other rider who became stuck, and denying that they created any dangerous condition. In opposition, the plaintiff took the position that he was not a “participant” at the time of the alleged rescue, in order to avoid the defenses of Primary Assumption of Risk, as well as the legal effect of a signed release. As a result of this legal position, the court narrowed the plaintiff’s case to the “rescue doctrine” (eliminating the other negligence theories) and ruled that the plaintiff must establish that the defendants owed a duty to the person the plaintiff identified as the “rescuee” – the other OHV rider. The court deemed the motions for summary judgment as motions for judgment on the pleadings, granted those motions, and granted the plaintiff leave to amend the complaint.

The plaintiff thereafter filed amended complaints seeking to establish the defendants’ duty to the rescuee OHV rider. Mr. Plessala successfully demurred to the amended complaints with an exhaustive analysis of the statutory framework of the Code of Federal Regulations applicable to public lands held open for recreational use. The Court sustained Mr. Plessala’s demurrer, without leave to amend, ending the litigation against his client.

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.