Cernansky v. Lefebvre

88 F. Supp. 3d 299, 2015 U.S. Dist. LEXIS 11367, 2015 WL 402758
CourtDistrict Court, D. Vermont
DecidedJanuary 28, 2015
DocketCase No. 2:14-cv-180
StatusPublished
Cited by3 cases

This text of 88 F. Supp. 3d 299 (Cernansky v. Lefebvre) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cernansky v. Lefebvre, 88 F. Supp. 3d 299, 2015 U.S. Dist. LEXIS 11367, 2015 WL 402758 (D. Vt. 2015).

Opinion

OPINION AND ORDER

WILLIAM K. SESSIONS III, District Judge.

On August 28, 2012, Peter Cernansky feli 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 Le-febvre, 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.

[303]*303 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 longboard-ing. 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. Le-febvre 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 Le-febvre and Pioneers dispute the allegation that Pioneers sold or otherwise provided the “Day Walker” board.

Thé Complaint alleges that Defendant Russ Owen d/b/a Soda Factory Skate Board (“Owen”) manufactured the long-board. Owen has filed an answer to the Complaint and is proceeding pro se. Le-febvre 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 longboard-ing. A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tésts the legal sufficiency of the plaintiffs 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 plaintiffs 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 “[factual 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.

[304]*304A. 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 bail- or. ..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 long-boarding.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
88 F. Supp. 3d 299, 2015 U.S. Dist. LEXIS 11367, 2015 WL 402758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cernansky-v-lefebvre-vtd-2015.