Bumper car rider cannot sue amusement park for injuries caused by risks inherent in riding bumper cars

Bumper car operators got some welcome news from the California Supreme Court when the court ruled that they were not liable under the primary assumption of risk doctrine for injuries caused by risks inherent in riding bumper cars (click here for a pdf version of the court’s opinion).

Dr. Smriti Nalwa, an adult, was visiting Great America amusement park near San Jose.  She was a passenger in a bumper car driven by her 9 year old son in the Rue le Dodge bumper car ride (last ridden by the author about 25 years ago!).  While being bumped by other cars, including a head-on collision, Dr. Nalwa apparently put her hand on the bumper car’s dashboard to brace herself but fractured her wrist in the process (click here for a video of the Rue le Dodge in action: this is not a video of Dr. Nalwa’s incident).

The “primary assumption of risk” doctrine is a legal principle that bars liability for injuries caused by inherent risks.  This principle has been applied to inherently dangerous sports such as skiing and football.  This does not mean that there can be no liability for any injury in the activity: for example, in football one could still be sued for injuries caused by an act not related to the inherent risk in the game such as an intentional injury or reckless conduct totally outside the range of conduct that could be expected in a football game.

The California Supreme Court first ruled that although most of the primary assumption of risk cases involved sports activities, the doctrine could be applied to active recreational activities involving an inherent risk of injury to voluntary participatents where the risk cannot be eliminated without altering the fundamental nature of the actitvity.  Allowing voluntary participants in recreational activities to sue other participants or facility operators would threaten the existence of the activity.

Regarding bumper cars, the court felt that low-speed collisions are the whole point of bumper car rides.  Although the collisions were not highly dangerous, they do carry an inherent risk of minor injuries, and the risk of such injuries cannot be eliminated without changing the basic nature of bumper car rides such as significantly decreasing the speed of the bumper cars.  As the famous Judge Cardozo once stated, the attractions of the amusement park “are not the pleasures of tranquility.”  Furthermore, the court distingushed bumper cars from rides such as roller coasters in that the amusement park is in control of the roller coaster versus a bumper car where the riders actively engage in bumping each other.

For more information on this case, see this Los Angeles Times article.


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Patent Law – The Patent Troll Update: News and Strategy – Fall 2012

As 2012 turns in 2013, patent trolls continue to get an increasing amount of coverage, including the following:

Plainsite.org compiles a list of entities that could be considered patent trolls.

Scientific American on patent trolls.

The FTC holds a hearing on patent trolls.

How prior art can defeat patent trolls.

Law.com on ideas on how to manage patent litigation.

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Real Estate Law – What to do when someone wants to back out of the sale of a house

With the real estate market making a slow but steady recovery, we have started to get questions we have not heard since 2006: questions about home sellers who want to back out of sales contract.  Here is a short explainer of what can and cannot be done pursuant to California law.


The starting point for determining if or when a contract can be broken is looking at the terms of the contract.  For the most part, sales contracts in California will be the form used by the California Association of Relators (CAR).


The seller can back out of the contract when the terms of the contract allow the seller to do so.  That could be when the buyer is not ready to close on the closing date (i.e. not obtaining the required financing) or it could be when the buyer does not fufilll some other contingency in the contract.

Likewise, the buyer can back out of the contract when the terms of the contract allow it.  For example, this could be when the buyer does not obtain the required financing or when the property apprisal is below the contract price.  This could also be within the 17 day deadline in the CAR contract for the buyer to complete his or her investigation or approve the disclosures provided by the seller.


These days, it is more likely the seller that wants to back out of the contract.  If the seller does not have the right to back out of the contract, the buyer can claim money damages or seek to force the sale.  Money damages would include any money spent by the buyer in the purchase process (i.e. inspection fee, appraisal fees, loan application fees).

If the buyer wants to force the sale, the buyer can file what is known as a specific performance lawsuit.  If the buyer meets the requirement to obtain specific performance, the court will order the seller to complete the sale of the property.  The requirements to obtain specific performance include (1) that the contract can be enforced; (2) that the sales price is adequate [i.e. fair enough]; and (3) that the buyer is ready, willing, and able to complete the purchase [i.e. the buyer can prove it had adequate liquid assets or a loan commitment to complete the sale]

Also, if a buyer files a specific performance lawsuit, the buyer should record a notice of lis pendens.  A lis pendens is record that a lawsuit is pending over the ownership of the property.  This will make it unlikely that the seller will be able to sell the property to another buyer in the meantime as another buyer is not likely to want to buy a property whose title is under dispute.


If the buyer wants to back out of the contract in a manner not allowed by the contract, then under the CAR contract, the seller can seek to recover the deposit paid by the buyer.  The seller can also seek to sue for specific performance, although that is not practical in a rising market.

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Employment Law – Fox intern lawsuit shows risk of using unpaid workers

What started as a minimum wage and overtime lawsuit by interns on the Fox Searchlight movie Black Swan has now morphed into a wider action that may include other divisions within Fox’s entertainment entities.  Although the lawsuit was filed in New York, this action may now include interns in certain Fox entities in California.

The original lawsuit (click here for a pdf copy) concerned 2 Black Swan unpaid interns who claimed they were owed minimum wages and overtime.  The lawsuit seeks to be a class action, meaning that if the proper procedural requirements are met, the lawsuit may include not only the original 2 interns but also all other interns who had a similar situation (for a more detailed explanation on class action lawsuits in general, click here).

California considers the following factors to determine whether an intern should be considered an employee subject to the usual employment laws: (1) whether the training is similar to that given by a vocational school; (2) the training is for the benefit of the intern; (3) the intern does not displace regular employees; (4) the employer gets no immediate advantage from the work of the intern; (5) the intern is not necessarily entitled to a job after the internship; (6) the employer and intern understand the intern is unpaid; (7) whether the training is part of an educational program; (8) whether the intern receives employee benefits; (9) the training is general vs. specific to that employer; (10) the intern screening process is different than the employee screening process; and (11) ads for the internship is stated in terms of training vs. employment.  For more on this analysis, see this DLSE opinion letter.

Based on these factors, it is very easy for a company to hire unpaid interns and have them be deemed employees.  Companies should seriously analyze their internship programs and treat the interns as employees unless the above factors indicate the interns really can be considered interns.

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Fashion Law, Trademark Law – Christian Louboutin wins split decision on trademark infringment dispute with YSL over red-soled shoes

Avoiding what could have been a disastrous ruling, the 2nd U.S. Circuit Court of Appeals ruled that fashion designer, Christian Louboutin, can enforce a trademark in red-soled shoes unless the entire shoe is red (here is the Google Scholar version of the ruling).

As noted in our previous blog post, the lower District Court declined to grant an injunction to stop YSL from selling red-colored shoes with red soles. In so doing, the District Court had “serious doubts” that Louboutin’s trademark of red-soled shoes was protectible because that court believed color served a function in the fashion industry, unlike something like pink-colored insulation, where the pink color does not make the insulation work better and only serves to identify the Owens-Corning brand.

Had the 2nd Circuit Court agreed with the District Court’s reasoning, Louboutin’s ability to stop competitors from selling red-soled shoes would have been severely limited.  However, the 2nd Circuit Court held that there was no need to treat the fashion industry in a different manner than any other industry.  Louboutin’s trademark was analyzed like any other trademark, and the fairly unique status of red-soled shoes being linked to Louboutin entitled this trademark to be valid and enforceable.  The 2nd Circuit Court did limit the scope of the trademark to red-soled shoes where the upper was a different color.  Although there was some basis to limit the trademark in this manner (customer surveys, testimony from YSL executives), if Louboutin was entitled to a trademark for red-soled shoes, the rationale for carving out an exception for all-red shoes does seem a little suspect.

As a result, the 2nd Circuit Court did not bar YSL from selling their shoes because YSL’s entire shoe was red (see this Daily Mail story for a comparison of the shoes).  Since the point of this lawsuit was to stop YSL from selling its shoe, the lawsuit actually failed in its purpose.  However, the 2nd Circuit Court’s ruling did validate Louboutin’s efforts to enforce the trademark over any other red-soled shoes with different color uppers.

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ADA Lawsuits – Updates in the defense of disabled access cases – summer 2012

Most of the recent action concerning California ADA lawsuits revolves around California Senate Bill (SB) 1186.  This bill would reduce the amount of recoverable damages in certain situations (the exact particulars are still being debated but what is being discussed includes situations where the defendant corrects violations within a certain time or whether a certified access specialist is hired or whether construction was approved by a building department), restrict pre-lawsuit demand letters, and impose other procedural requirements.  For the latest on SB 1186, click here.  For an article on SB 1186, click here.

In the meantime, here’s other coverage on recent ADA lawsuits:

Businesses around Corning the target of ADA lawsuits.

More San Francisco ADA lawsuits.

A West Covina bar owner is the target of multiple ADA lawsuits.

Finally, a blog post from a website from a company that makes wheelchair seat cushions.

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Employment Law – Domino’s Pizza can be found to be liable for acts of franchisee

Many franchisors take the attitude that their franchisees are independent contractors and so the franchisor is not liable for the acts of their franchisee.  Domino’s Pizza just found out from a California court that they might be liable for sexual harassment arising from the acts of a franchisee’s supervisor against a 16 year old employee (see the court ruling from this case, Patterson v. Domino’s Pizza, LLC, here).

In general, in California an employer can be found liable for sexual harassment by a supervisor depending on the nature of the harassment.  In the Patterson case, the franchisee declared bankruptcy and so no money could be recovered from the franchisee.  The franchise agreement said the franchisee was responsible for supervising and paying its employees.  However, the franchisee must hire employees that meet qualifications set by Domino’s; the franchisee is required by Domino’s to install a special employment training system; and Domino’s Manager’s Reference Guides contained numerous standards for franchisee’s employees to meet (i.e. dress code, working time reporting).  The franchisee’s owner said Domino’s told him to fire the harassing supervisor.  Domino’s had also allegedly instructed the franchisee to fire at least one other employee on another occasion.  Domino’s also had numerous other controls on the manner of operating a franchise.

Domino’s contended this case should have been dismissed without a trial because its franchisee was an independent contractor and so Domino’s was not responsible for the acts of the franchisee.  The Patterson court found that based on the above, there was enough evidence for a jury or judge to find that Domino’s exercised substantial control over the franchisee such that Domino’s could be found liable for the franchisee.  Even if the franchise agreement stated the franchisee was responsible for operations and its employees, if facts exist that indicate that in truth, the franchisor was exercising substantial control, then the franchisor may have liability for the franchisee’s acts.  Therefore, the court declined to dismiss the case and if this case does not settle, it will go to trial.

For more on this case, see this Metropolitan News-Enterprise article.

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Copyright Law – Village People songwriter terminates copyright deal for ‘Y.M.C.A.’ and other hits

The cop from the Village People, Victor Willis, successfully terminated rights to the song, “Y.M.C.A.,” by the companies that administered publishing rights to this crowd-pleasing song, among others.

Willis, a co-composer of the Village People’s songs, sought to terminate the grant of his share of the copyright in the songs to publishers, Scorpio Music and Can’t Stop Productions.  The publishers responded by filing a declaratory relief lawsuit seeking a court ruling on Wills’ rights.  The court ruled that Willis could terminate his publishing deal as the 1978 amendments to the US Copyright Act gave songwriters the right to unilaterally terminate their copyright deals after 35 years.  The court also ruled that Willis, who had at least one co-composer, could terminate his publishing deal whether or not the other composers seek to terminate their share of the copyright.

Although it’s not clear how much revenue the Village People songs are still generating, Willis’ share will (starting in 2013) increase from 12-20% to at least 33%.

Needless to say, this will start opening the doors for many prominent songwriters to follow in Willis’ footsteps (assuming this does not get reversed in an appeal).

For more on this case, see this Bloomberg article and this Hollywood Reporter article.

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Trademark Law – Kevin Durant accused of ripping off the “Durantula” nickname

In an unsuprising development, Oklahoma Thunder forward Kevin Durant becomes known to the general public with his appearance in the NBA Finals, only to be greeted with a trademark infringement lawsuit (click here for the lawsuit).  Durant is accused by Mark Durante, a veteran Chicago-based guitarist, for infringing Durante’s trademark in the nickname “Durantula.”  Durante has been known as Durantula for some time.

Durant’s most commonly-referred to nickname is “KD” (an unfortunate development with basketball players and other celebrities to be now known by their initials or shortened versions of their names, who used to be known with more creative nicknames like “Magic” or the “Mailman”).  Sometimes he is called “Durantula,” and Nike and others have used the Durantula name in commerce.

Durant apparently claims the use by Nike and others of the Durantula name was done without his authorization, and it is not clear at this point if that is true.  Regardless, for now Durante seems to have 2 big hurdles in this lawsuit.  One is that trademark protection is only given if Durant’s use of the trademark is likely to cause customer confusion with Durante.  It is highly unlikely anyone would confuse Durant with Durante (see Durante’s website for a photo and info on Durante, if you don’t know what Durant looks like, here he is).  The second problem is that if Durante should claim Durant is causing “reverse confusion” or reverse “passing off” (if Durant sold Durante’s product in a way that customers think the source of the product is Durant, so that anyone wanting a Durantula the guitarist T-shirt would buy it from Durant and not Durante), again Durante is not going to be able to prove Durant is trying to pass himself off as the Durantula guitarist and in any event the two are not selling similar products or services.

One would think Durante and Durant should be able to co-exist in the marketplace and share the Durantula nickname, but we will see.

For more on this case, see this Courthouse News article.

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Patent Law – The Patent Troll Update: News and Strategy – Summer 2012

Here’s the latest on news and views on the patent troll front (for our last update, see this):

A Boston University study finds that patent trolls cost American companies $29 billion in 2011 (for the actual study, see this).

The Electronic Frontier Foundation launched a new campaign, Defend Innovation, to reform software patent law (we previously posted on one aspect of this topic here).

Twitter pledges that if it ever files a patent infringement lawsuit, it will only be for “offensive” purposes.

Fark.com was sued for patent infringement and settled without paying anything, here’s how they did it.

This is a work in progress, but Chicago-Kent School of Law Professor David Schwartz is studying the methods of patent contingency fee attorneys, see the draft version here: this will be important in improving patent defense strategy in the future.

Finally, Slate.com weighs in again on patent trolls.

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