Articles Posted in Assumption of Risk

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James DeFranscesco, 53, owned his own trucking company. He parked his tractor-trailer for the night at a truck stop in Georgia but was awakened when an adjacent tractor-trailer got stuck to his rig after turning too sharply while pulling out.

DeFranscesco opened his door and fell to the pavement while the other truck driver attempted to free his vehicle. The other driver broke free and started to drive off. DeFranscesco ran after the truck and jumped on its low bumper bar, holding on with one hand and yelling at the driver to stop.

The driver then tapped his brakes, causing DeFranscesco to fall off the rig. DeFranscesco suffered a lumbar disk protrusion at L3-4, which required a laminectomy. He continued to experience pain that interfered with his ability to work, resulting in 795 missed work days and approximately $363,400 in lost income.

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Beau Gordon, a professional roofer, fell 35 feet through a “camouflaged hole” in a warehouse roof that he was inspecting. Gordon suffered a head injury and, as a result, brought suit against the building’s owner, ARC Manufacturing Inc., and Joseph Meyers.

On appeal, the primary issue was whether the trial court correctly refused to instruct the jury on primary assumption of risk where, as in this case, the defendants did not hire or engage Gordon.

The Court of Appeals concluded that primary assumption of risk did not apply, rejected the defendants’ other contentions and affirmed the judgment in favor of Gordon.

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In a pending appeal from a jury verdict in favor of defendants Capital Fitness Inc. and a personal trainer, the plaintiff Gabriela Sosa-Gaines appealed the verdict handed down by a DuPage County Circuit Court jury on Aug. 4, 2017 and entered by the trial court.

The principal basis for the appeal was that the trial court denied the plaintiff’s motion for summary judgment and refused to instruct the jury on assumption of risk, the risk that the plaintiff could never have imagined when signing the two exculpatory- laden agreements.

It was argued in the briefs and in oral argument, which took place on Dec. 14, 2018 at the Illinois Appellate Court, Second District in Elgin, Ill., that there was no genuine issue of disputed facts that the “mild adjustment” that herniated plaintiff’s disks at the thoracic spine level was not an activity covered by the exculpatory clauses found in the Capital Fitness/XSport Membership Agreement and the Physical Training Agreement. Both documents have broad exculpatory clauses that would make a claim for negligence against these defendants unsustainable should any one of the delineated activities injure the plaintiff.

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