Van Tuyn v. Zurich American Ins. Co., No. 83-1087

CourtFlorida District Court of Appeals
Writing for the CourtWALDEN; ANSTEAD, C.J., and GLICKSTEIN
Citation447 So.2d 318
Decision Date15 February 1984
Docket NumberNo. 83-1087
PartiesSabina VAN TUYN, Appellant, v. ZURICH AMERICAN INSURANCE CO., a foreign corp., and Marr Investments, Inc., d/b/a Club Dallas, Appellees.

Page 318

447 So.2d 318
Sabina VAN TUYN, Appellant,
v.
ZURICH AMERICAN INSURANCE CO., a foreign corp., and Marr Investments, Inc., d/b/a Club Dallas, Appellees.
No. 83-1087.
District Court of Appeal of Florida,
Fourth District.
Feb. 15, 1984.
Rehearing Denied April 11, 1984.

Page 319

Steven D. Tishler, Miami, for appellant.

Jane Kreusler-Walsh and Larry Klein, West Palm Beach, and Pomeroy, Betts & Pomeroy, Fort Lauderdale, for appellees.

WALDEN, Judge.

Sabina Van Tuyn (hereafter Plaintiff) sued Zurich American Insurance Company and Marr Investments, Inc., d/b/a Club Dallas (hereafter Defendants) for injuries she sustained after falling from a mechanical bull in the Club Dallas.

Final summary judgment was granted in favor of Defendants and against Plaintiff. Plaintiff appeals. We reverse and remand.

Plaintiff, accompanied by a friend, went to the Club Dallas. On the Club premises was a mechanical device commonly known as "J.R.," a bull, which patrons were invited to mount. The device moved in a forward, backward and sideways direction, the object being to dislodge the rider.

Plaintiff observed other patrons riding the bull for some fifteen or twenty minutes. It was plaintiff's testimony that, having decided to ride the bull, she told the operator that she had never ridden before and asked that he go slowly. According to plaintiff, his response was something to the effect of, "Don't worry about it. We'll take care of it." Prior to mounting the device, plaintiff was asked to sign a written waiver. She signed, but did not read, the waiver.

Plaintiff rode the bull for approximately ten to fifteen seconds before any problem arose. According to plaintiff's testimony, the operator suddenly started speeding up the bull very, very fast. She stated that, as the bull was moving left to right, the operator made the front of the bull come

Page 320

up at high speed. Plaintiff testified that this was when she lost her balance and fell forward onto the head of the bull. Plaintiff then fell off the bull, sustaining personal injuries.

We will forego exploration of the well-known summary judgment procedures. Suffice it to say, apart from the issue of waiver, there are indeed genuine issues of material fact which are a bar to summary judgment. Particularly an issue is the conduct of the employee in his negligent or willful operation of the speed-regulating mechanism after being informed that plaintiff was a novice.

Does the waiver signed by plaintiff nevertheless bar her recovery and support the entry of summary judgment? We think not.

The waiver provided:

I fully understand that the mechanical Bucking Brama Bull known as "JR" is a dangerous amusement device.

I hereby voluntarily assume any and all risk, including injury to my person and property which may be caused as a result of my riding or attempting to ride this Bucking Brama Bull.

In consideration for CLUB DALLAS permitting me to ride such amusement device, I hereby voluntarily release, waive, and discharge CLUB...

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31 practice notes
  • Ford v. Gouin, No. A043117
    • United States
    • California Court of Appeals
    • February 21, 1990
    ...assumes risk of being accidentally struck by another officer in training exercise]; Van Tuyn v. Zurich American Ins. Co. (Fla.App.1984) 447 So.2d 318 [riding a mechanical bull]; Carvajal v. Alvarez (Fla.App.1984) 462 So.2d 1156 [horseback riding with another rider on a single saddle]; Robbi......
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987) ; Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984) ; Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144 (Fla. 2d DCA 1981) ; and Tout v. Hartford Accident & Indem. Co., ......
  • Ucf Athletics Ass'n Inc. v. Plancher, No. 5D11–2710.
    • United States
    • Court of Appeal of Florida (US)
    • September 6, 2013
    ...Inc., 582 So.2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984), this court has repeatedly rejected the need for express language referring to a release of the defendant for “negligence”......
  • UCF Athletics Ass'n Inc. v. Plancher, Case No. 5D11-2710
    • United States
    • Court of Appeal of Florida (US)
    • August 16, 2013
    ...Inc., 582 So. 2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984), this court has repeatedly rejected the need for express language referring to a release of the defendant for "negligen......
  • Request a trial to view additional results
31 cases
  • Ford v. Gouin, No. A043117
    • United States
    • California Court of Appeals
    • February 21, 1990
    ...assumes risk of being accidentally struck by another officer in training exercise]; Van Tuyn v. Zurich American Ins. Co. (Fla.App.1984) 447 So.2d 318 [riding a mechanical bull]; Carvajal v. Alvarez (Fla.App.1984) 462 So.2d 1156 [horseback riding with another rider on a single saddle]; Robbi......
  • Sanislo v. Give Kids the World, Inc., No. SC12–2409.
    • United States
    • United States State Supreme Court of Florida
    • February 12, 2015
    ...and Fourth District Courts of Appeal in Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987) ; Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984) ; Goyings v. Jack & Ruth Eckerd Found., 403 So.2d 1144 (Fla. 2d DCA 1981) ; and Tout v. Hartford Accident & Indem. Co., ......
  • Ucf Athletics Ass'n Inc. v. Plancher, No. 5D11–2710.
    • United States
    • Court of Appeal of Florida (US)
    • September 6, 2013
    ...Inc., 582 So.2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So.2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318 (Fla. 4th DCA 1984), this court has repeatedly rejected the need for express language referring to a release of the defendant for “negligence”......
  • UCF Athletics Ass'n Inc. v. Plancher, Case No. 5D11-2710
    • United States
    • Court of Appeal of Florida (US)
    • August 16, 2013
    ...Inc., 582 So. 2d 27 (Fla. 3d DCA 1991); Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987); Van Tuyn v. Zurich Am. Ins. Co., 447 So. 2d 318 (Fla. 4th DCA 1984), this court has repeatedly rejected the need for express language referring to a release of the defendant for "negligen......
  • Request a trial to view additional results

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