
• Parents of a 10-year-old boy who witnessed a killer whale's fatal attack on a trainer sue Sea World Orlando for infliction of emotional distress. "Without question, it was reasonably foreseeable and in fact predictable that an attack such as this one by a killer whale with the tendencies of Tilikum was inevitable." Connell v. Sea World
• Denver judge dismisses Oklahoma City bomber Terry Nichols's civil rights claims against prison officials for denying him a high-fiber diet. Nichols v. Federal Bureau of Prisons
• Illinois teenager with cerebral palsy sues the Special Olympics for refusing to let her play basketball with the help of a service dog. Youngwith v. Special Olympics
• Montana judge sets aside a government decision removing protections for the northern Rocky Mountain gray wolf. The Endangered Species Act "was not intended to sow the dragon's teeth of strife or to plant the seeds of future conflicts that have given rise to this case." Defenders of Wildlife v. Salazar
• San Francisco judge dismisses a cereal consumer's false advertising suit. "[T]here is nothing in the packaging or marketing of Cap’n Crunch that would in any way deceive a reasonable consumer into believing that the cereal contains or derives nutritional value from real fruit." Werbel v. PepsiCo
• Iowa judge says a sheriff denied the applications of a father and son for concealed weapons permits in retaliation for their political activism. "This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views." Dorr v. Weber
• 5th Circuit rules that a school district violated the religious freedom of a Native American boy by requiring him to wear his long hair in a bun on top of his head or in a braid tucked into his shirt. The boy "has a sincere religious belief in wearing his hair uncut and in plain view." A.A. v. Needville Ind. Sch. Dist.
• 11th Circuit denies a challenge to an ordinance restricting handouts of food to the homeless in Orlando parks. "[W]e are unpersuaded that the conduct of simply feeding people ... is expressive for First Amendment purposes." First Vagabonds Church v. City of Orlando

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Liability Release At Issue in "Hardbody" Death |
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Richard Vega
A Texas man who killed himself after participating in an endurance contest extinguished any wrongful-death claim by signing a liability release, the sponsor of the contest argues in a motion for summary judgment.
Patterson Nissan of Longview, Texas, asserted the waiver defense to avoid getting to the merits of whether it caused Richard Vega's suicide by failing to protect him from the “bizarre and dangerous consequences” of its “Hands on a Hardbody” contest. Vega's family sued the auto dealership for wrongful death in January.
“[T]he contract signed by Vega prior to competing in the contest ... acts as an absolute bar to any right of action that plaintiffs may bring against Patterson,” the motion says.
By signing the release, contestants assumed “full and complete responsibility and liability for his or health and safety” and agreed to indemnify Patterson “against any demands, claims or liability.”
But the plaintiffs' attorney contends the release is unenforceable boilerplate.
“The contract ... was not a negotiated contract with parties of equal competence,” Blake Bailey of Tyler, Texas, says in a brief. “In fact the contestants were overwhelmed by advertisement and the chance to win a truck most could never hope to own.”
Vega, 24, competed in September 2005 to win a Nissan pickup, the prize going to the contestant who endured standing beside the truck with a hand on it longer than any other. After standing for 48 hours, he walked away, broke into a Kmart across the street and, with a shotgun taken from the store, shot himself in the head.
In their petition, his family alleged that the stress of the contest caused Vega “to become “temporarily insane and to take his own life” and Patterson was negligent in not providing psychiatric or medical monitoring to contestants.
The case is more of a stretch than that of a California woman who died in January after taking part in a radio show's water-drinking competition. But the plaintiffs should be able to defeat the waiver defense.
Under Texas law, a release from liability for negligence must be freely negotiated and “unambiguously and expressly” state that it applies to negligence claims. Patterson Nissan's waiver appears to fail the express-negligence test by referring generically to “demands, claims or liability.”
As for free negotiation, the plaintiffs dispute that the terms of the contract were explained to Vega. And the Texas Supreme Court found a similar boilerplate contract unenforceable in Exxon Corp. v Brecheen, 526 S.W.2d 519 (1975), saying that “the showing of disparity of bargaining power was such that it would be contrary to public policy to enforce the document.”
A hearing on the summary judgment motion has been set for May 17 in Gregg County District Court.
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