Sharks, Roller Skates, And Tow Truck Drivers!

In  one  recent  case,  a  business known  as  "The  Shark  Club"
maintained  a  shark  (not the briefcase  carrying  kind)  in  an
aquarium.   The shark apparently outgrew its tank  and  the  club
hired  a company to move it to another location.  The two fellows
who  undertook the task first drained the aquarium.  One  of  the
men  took off his shoes, entered the tank, and grabbed the  shark
by  its tail as the other fellow held its head.  As the two began
lifting the shark, it "suddenly thrashed about."  One of the  men
let go and the shark spun around, biting the other man's arm.

Although  strict liability is generally imposed upon  anyone  who
keeps  a naturally dangerous animal, and a human-eating shark  is
certainly such a beast, liability is not absolute.  The  doctrine
of  assumption of the risk frequently enters into the picture  in
such  matters.   The Court notes that "The Club  recognized  that
certain  expertise  was  necessary  for  the  dangerous  task  of
handling a shark.  Accordingly, it hired ". . . a known expert in
the  field  to  do the work."  After observing that  shark  bites
constitute  an occupational hazard to such an expert,  the  Court
observes  that  "like the firefighter . . . no duty  is  owed  to
protect the shark handler from the very danger that he or she was
employed  to confront."  As a result, The Shark Club didn't  have
to pay for the injury.

In  another matter, a roller skater fell and fractured his  ankle
while  skating.   He later brought an action against  the  roller
skating  center,  alleging  that the  center  provided  him  with
"racing  skates", which were cut below the ankle  bone  and  that
such skates were inappropriate to his novice skill level.

The  Court  noted that the assumption of the risk  doctrine  bars
recovery for a mere fall, or a fall while trying to avoid another
fallen  skater.  The Court held, however, that a roller rink  has
"a  duty  not  to negligently supply a novice skater with  skates
unsuited  to his skill level."  The Court also observed, however,
that  the  Center  could  avoid liability by  demonstrating  that
skates  cut  below the ankle "are not dangerous to  inexperienced
skaters, or that despite warning, plaintiff requested the  skates
supplied to him, etc."

Finally, in another case, a plaintiff sued the Automobile Club of
Southern  California  under  rather unusual  circumstances.   The
plaintiff, an Automobile Club Member, telephoned the club with  a
request for assistance to change a flat tire.

A  female tow-truck driver responded to the call and in trying to
replace the flat tire, she got her hand caught between the  wheel
and the wheel well.

The  driver  screamed  "`Get it off me.  Get  it  off  me.'   Not
knowing  how  to  use [the] jack, and seeing she was  hurt,  [the
plaintiff]  lifted  the  car twice from  the  left  rear  bumper.
Afterward, [the plaintiff] felt pain in his shoulder and  groin."
Small wonder.

In  reviewing  the  case, the Court of Appeal discussed  the  so-
called  "rescue  doctrine."  This doctrine  essentially  provides
that  "persons injured in the course of undertaking an  necessary
rescue  may,  absent  rash or reckless  conduct  on  their  part,
recover from the person whose negligence created the peril  which
necessitated the rescue."

Since  the  tow-truck driver and the automobile club  were  under
contractual obligation to come to the plaintiff's aid  by  reason
of  the  automobile  club membership, an  obligation  existed  to
perform  the service in a competent reasonable manner  so  as  to
avoid  such problems.  As a result, the Court held that liability
on  the  part  of the tow-truck operator and the automobile  club
could  exist under such circumstances and ordered the  matter  to
proceed to trial.

The  moral of the story?  Don't undertake tasks for which you are
improperly trained.  Know your limits.  You will never catch this
author doing his own plumbing!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1999-2002