Cernansky v. Lefebvre

• Decision Date: 28 January 2015
• Docket Number: Case No. 2:14–cv–180.
• Court: U.S. District Court — District of Vermont
• Parties: Charles CERNANSKY, individually and in his capacity as Executor of the Estate of Peter Cernansky, Plaintiff, v. Tyler LEFEBVRE, Pioneers Board Shop, Inc., and Russ Owen d/b/a Soda Factory Skate Boards, Defendants.

88 F.Supp.3d 299

Charles CERNANSKY, individually and in his capacity as Executor of the Estate of Peter Cernansky, Plaintiff

v.Tyler LEFEBVRE, Pioneers Board Shop, Inc., and Russ Owen d/b/a Soda Factory Skate Boards, Defendants.

Case No. 2:14–cv–180.

United States District Court, D. Vermont.

Signed Jan. 28, 2015.

Matthew G. Hart, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT, for Plaintiff.

Pietro J. Lynn, Esq., Lynn, Lynn & Blackman, P.C., Burlington, VT, Thomas P. Aicher, Esq., Cleary Shahi & Aicher, P.C., Rutland, VT, for Defendants.

Russ Owen, Bristol, RI, pro se.

OPINION AND ORDER

WILLIAM K. SESSIONS III, District Judge.

On August 28, 2012, Peter Cernansky fell while riding a skateboard-like device known as a longboard. Peter hit his head on the pavement, suffered severe head injuries, and died two days later. Peter's father, plaintiff Charles Cernansky, acting individually and as executor of Peter's estate, now brings this diversity action claiming failure to warn and wrongful death.

Pending before the Court are two motions to dismiss. Defendant Tyler Lefebvre, Peter's college roommate and owner of the longboard, argues that he had no duty to warn of obvious hazards and that Peter assumed the risk of longboarding. Defendant Pioneers Board Shops, Inc. (“Pioneers”), the New Hampshire shop that allegedly sold the longboard, argues lack of personal jurisdiction and failure to state a claim. For the reasons set forth below, Lefebvre's motion to dismiss is denied. Pioneers' motion to dismiss is denied without prejudice as to personal jurisdiction. The Court will allow Plaintiff 30 days in which to conduct jurisdictional discovery with regard to Pioneers' contacts with Vermont.

Factual Background

On August 28, 2012, at approximately 4:30 p.m., Peter Cernansky and his college roommate, Tyler Lefebvre, traveled to Spruce Street in Burlington, Vermont to ride Lefebvre's “Day Walker” longboard. Peter did not own a longboard, and prior to that day had never ridden a longboard. Although Lefebvre wore a skate boarding helmet, Peter had no helmet.

The Complaint alleges that Lefebvre failed to provide Peter with any safety instructions prior to taking him longboarding. The Complaint further alleges, upon information and belief, that Peter reached speeds over 25 miles per hour and “began to speed wobble.” ECF No. 1 at 3. Peter lost control, fell backward, and hit his head against the pavement, suffering occipital and temporal skull fractures as a result of his fall. He was taken to Fletcher Allen Health Care, where he died on August 30, 2012 after being removed from life support.

Defendant Pioneers, a board shop in North Hampton, New Hampshire, allegedly sponsored Lefebvre as a “longboard ambassador” and provided him with the “Day Walker” board from which Peter fell. Lefebvre explains in an affidavit that as an ambassador for Pioneers, he “would periodically share photos and/or video of myself riding, display a Pioneers sticker on my equipment, and occasionally attend competitions listing Pioneers as one of my sponsors.” ECF No. 9–2 at 1. In exchange for these services, Lefebvre received discounted products. Both Lefebvre and Pioneers dispute the allegation that Pioneers sold or otherwise provided the “Day Walker” board.

The Complaint alleges that Defendant Russ Owen d/b/a Soda Factory Skate Board (“Owen”) manufactured the longboard. Owen has filed an answer to the Complaint and is proceeding pro se. Lefebvre and Pioneers have moved to dismiss.

Discussion

I. Defendant Lefebvre's Motion to Dismiss

Defendant Tyler Lefebvre moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), arguing (1) that he had no duty to warn of obvious dangers and (2) that Peter assumed the risks associated with longboarding. A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of the plaintiff's claim for relief. See Patane v. Clark, 508 F.3d 106, 111–12 (2d Cir.2007) (citation omitted). In considering such a motion, a court must accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in the plaintiff's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007) (citation omitted). This presumption of truth does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted).

To survive a motion to dismiss, a party need only plead “a short and plain statement of the claim,” see Fed.R.Civ.P. 8(a)(2), with sufficient factual “heft to show that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and alterations omitted). Under this standard, the complaint's “[f]actual allegations must be enough to raise a right of relief above the speculative level,” see id. at 555, 127 S.Ct. 1955 (citation omitted), and present claims that are “plausible on [their] face.” Id. at 570, 127 S.Ct. 1955. Where a plaintiff has “not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed.” Id. at 570, 127 S.Ct. 1955.

A. Gratuitous Bailment—Failure to Warn

Lefebvre first argues that the act of lending Peter the longboard created a gratuitous bailment, and that a gratuitous bailor is only required to warn of a latent defect or hazard. He contends that in this case the danger of riding a longboard was not latent and was instead obvious. He thus concludes that the Complaint fails to state a plausible failure to warn claim.

In support of his gratuitous bailment argument, Lefebvre cites Vermont case law from 1901 for the proposition that “ ‘[a] bailment is the delivery of good [s] for some purpose, upon a contract, express or implied, that after the purpose has been fulfilled they shall be redelivered to bailor....’ ” ECF NO. 6 at 3 (quoting James Smith Woolen Mach. Co. v. Holden, 73 Vt. 396, 51 A. 2, 4 (1901) ). He next cites out-of-state cases to support the contention that a gratuitous bailor only has a duty to warn of a latent defect or hazard. Id.

The failure to warn claim being brought against Lefebvre sounds in negligence. The Complaint alleges that Lefebvre owed a duty of care to Peter, breached that duty of care by failing to provide adequate instructions and warnings, and proximately caused Peter's fatal injuries. ECF No. 1 at 3–4; see Endres v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d 336 (setting forth elements of negligence). “Whether a defendant is negligent depends on whether his or her action was objectively reasonable under the circumstances; that is, the question is whether the actor either does foresee an unreasonable risk of injury, or could have foreseen it if he conducted himself as a reasonably prudent person.” Endres, 2008 VT 124, ¶ 13, 185 Vt. 63, 968 A.2d 336. Under Vermont common law, “the degree of care that a reasonably prudent person would exercise, and thus the scope of the legal duty of ordinary care, is determined by the foreseeability of the consequences of an individual's acts or omissions.”Edson v. Barre Supervisory Union No. 61, 2007 VT 62, ¶ 10, 182 Vt. 157, 933 A.2d 200.

Consistent with these general principles, the Complaint alleges Lefebvre should have foreseen the potential for serious injury based upon his knowledge of longboarding. More specifically, Lefebvre allegedly should have foreseen that sending Peter, a first-time longboarder, down a hill without a helmet or instruction presented a risk of harm giving rise to a legal duty. Plaintiff claims that Lefebvre breached that duty.

The fact that the longboard was loaned to Peter does not alter the negligence analysis. In the comparable context of negligent entrustment, the “theory requires a showing that the entruster knew or should have known some reason why entrusting the item to another was foolish or negligent.” Vince v. Wilson, 151 Vt. 425, 429, 561 A.2d 103, 105 (1989) (citation omitted). That theory derives its rule from the Restatement of Torts, which provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390.¹ The comments to the Restatement clarify that this rule “applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors or lenders, and to all kinds of bailors, irrespective of whether the bailment is gratuitous or for a consideration. ” Id., comment a (emphasis supplied); see also Vince, 151 Vt. at 428, 561 A.2d at 105.

Here, it is alleged that Peter was inexperienced, and that Lefebvre should have foreseen the risk of serious harm and taken certain precautions based upon his knowledge of longboarding. “Foresight of harm lies at the foundation of negligence.” LaFaso v. LaFaso, 126 Vt. 90, 94, 223 A.2d 814, 818 (1966). While Lefebvre allegedly loaned the longboard to Peter, that act did not affect foreseeability. The Court therefore finds that Plaintiff has stated a plausible claim of negligent failure to warn under Vermont common law.

B. Assumption of Risk

Lefebvre next argues that Peter assumed the risk of longboarding and that recovery is therefore barred under 12 V.S.A. § 1037. Section 1037 of Title 12 provides: “[n]otwithstanding the provisions of [Vermont's comparative negligence statute], a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.” 12 V.S.A. § 1037. Lefebvre contends that the dangers of longboarding were obvious, and that Section 1037 thus prohibits recovery. Plaintiff submits that the questions of obvious and necessary should go to the...