LegalMatch: Personal Injury

Woman Files Lawsuit after Injury on Skyscraper Slide

How much would you pay for the thrill of a lifetime? Los Angeles, California created an open glass-enclosed slide attached to the exterior of a downtown skyscraper. The slide is one thousand feet above Los Angeles and is one of the newest tourist attractions in the city. Called the “Skyslide,” the slide is a 45-foot long glass tube attached to the side of the city’s U.S. Bank tower. The tower is owned by a Singapore-based real estate company, OUE Skyspace LLC, who bought the tower three years ago and invested $50 million to renovate the building. The cost to ride is $33 and opened last month. It is said to offer riders the thrill of a lifetime.

But now the tower is faced with its first lawsuit only a month after its grand opening. A woman visiting Los Angeles with her husband from Woodmere, New York, claims she suffered a broken ankle sliding down the slide. Her complaint alleges OUE Skyspace LLC is negligent for failing to slow the rider down enough before reaching the end of the slide. Currently, there are a stack of mats in the runout area that “catches” the rider. According to the complaint, there was a gap that trapped the plaintiff’s feet and caused her ankle to break.

What is Negligence?

Negligence is the most common type of personal injury lawsuit. Negligence is the failure to use the amount of care that an ordinary person would in similar circumstances. In layman terms, negligence means that a person or entity acted in a careless (or negligent) manner. As a direct result of the negligence, someone was injured or property was damaged. Negligence differs from other areas of the law in that it is based on a person’s failure to take certain precautions that caused harm to another, rather than from a person’s direct action.

The plaintiff in this case argues OUE Skyspace LLC, as the builder of the slide, was negligent for creating a slide that did not adequately slow down the riders before landing.

Defense: Waiver of Liability

Extreme sport enthusiasts, such as people who bungee jump or skydive, sign what’s called a “waiver of liability.” A liability waiver is a form used to protect a person, business or entity from liability for dangerous activities by allowing the participant to sign a release before participating. Have you ever checked the back of your ski lift ticket? Even ski resorts include a liability waiver section on the back of their lift tickets in small print.

It is unclear whether the slide riders had to sign a liability waiver before riding the ride. However, even if there was a waiver, the owners of the slide are not protected from liability if the slide was not run safely. A finding of negligence would negate any waiver of liability signed prior to riding on the slide.

Defense: Assumption of the Risk

Assumption of the risk is a defense to a personal injury claim that bars or reduces the plaintiff’s right to recovery, even if the defendant is found to be negligent. The legal theory requires a demonstration that the plaintiff voluntarily and knowingly assumed the risk of injury as it’s inherent in the dangerous activity.

In order to prove the defense of assumption of risk, the defendant must show that:

• The plaintiff had actual knowledge of the risk involved in the conduct or activity; and,
• The plaintiff voluntarily accepted the risk, either expressly through agreement or implicitly by their words and conduct.

It is important to note that “actual knowledge” means the risks associated with the activity were obvious or apparent, and that the risk must not be forced upon the plaintiff.

Slides are found on playgrounds and were created for the enjoyment of young children. Slide injuries are relatively uncommon. Therefore, plaintiff would be found to have had no “actual knowledge” that she might break her ankle on the slide. Although she voluntarily rode on the slide, because she did not have actual knowledge of the danger associated with riding a slide, which society deems a relatively safe act, an assumption of the risk defense would not prevail.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

3-D Technology and the Future of Product Liability

3-D technology has been ubiquitous these past few years, in that it is all around us, whether it be on the big screen while viewing a cinematic feature or when accessing the 3-D option on the Nintendo handheld system. When it comes to 3-D printers, which has carved the way for a new wave of technological advancement and has provided new opportunities for innovation, it is in a precarious spot with regards to the law. 3-D printers are a new breed of technology and aren't easily categorized by legal experts.

On the one hand, this kind of technology can be placed under the intellectual property framework, but there is so much more to it than just that. Most definitely, these 3-D printers have patent application to them and potentially some copyrights as well. However, a facet of law that also warrants attention with regards to 3-D technology is product liability. Just as the manufacturer of an automobile might be faced with a lawsuit even though the accident occurred thousands of miles away, here too the question becomes how far-reaching is the scope of the 3-D printer when it comes to commencing lawsuits. 

One example of lawsuits in this field is with regards to adhesive products. Glue has been produced through 3-D technology but, sometimes the glue contains harmful chemicals. Who should the victim go after in cases like these?

The Quagmire That Is 3-D Technology

As it pertains to 3-D printers, product liability laws are up in the air as this is new technology that is yet to be tapped into fully. There are many overriding elements to it. The million dollar question is who should be held responsible if there ever is a lawsuit involving the 3-D printer technology. Before we delve any further, I will give a quick explanation as to how 3-D printers actually work so that we have a better understanding of the different factors that are at play here.

A 3-D printer uses a "computer-aided design" or better known as a CAD software, which acts as the blueprint for the product. This software is then used to generate the product. Now referring back to the question presented, should we go after the manufacturer of the printer, or rather the people responsible for the software that lent itself to the product? There are other players involved of course, such as the wholesaler and other distributors of the product. Even ad agencies can fall under the umbrella. For example, it is quite common for billboards to make statements that show the product in a positive light. Now if the product is defective and causes harm, then the ad agency has misrepresented. Usually, the manufacturer is the same as the CAD developer.

A big problem to this is that there is a good amount of transferring of ownership that takes place behind the scenes. Software licensing is one way of determining who is at fault, for whoever is the intellectual property holder will be the one who owns the rights to the work. However, the underlying issue is that licensing conflates who actually owns the software. Open source licensing (OSL gives IP right to third party to do whatever they like with it), which makes it even more difficult as this gives many third parties access to the underlying blueprint to tweak and alter it however they like. Then later, these third parties might use this modified blueprint as their basis for a different product altogether. This convolutes the situation.

Strict Liability

Product liability laws are currently in flux because of this novel issue. Some states abide strictly to the strict liability standard whereas others hardly ever apply it. In my opinion, it seems that the law in this field is headed towards a more flexible strict liability standard. To elaborate, strict liability is the standard liability that is applied in many civil lawsuits. This standard is very prominent in product liability cases. However, at least as it pertains to this 3-D technology, it would be wise to apply the strict liability more flexibly. Strict liability holds the party that is involved to a very high standard, regardless of how detached they are to the actual issue itself.

For example, if Google is the developer of the software that controls self-driving cars and one of the cars is involved in an accident due to a systematic error, Google will be held liable regardless of the circumstantial evidence, such as the durability of the car, human error on the part of the driver, etc. This seems very intense, at least in a discipline that is currently under scrutiny such as 3-D technology. I believe that the strict liability standard will be re-vamped to some degree to give some breathing space to the people involved in the development of such technology. Another solution might be to do what a few states do, which is to not apply the strict liability standard at all. Currently, the majority of states such as New Jersey stick to the strict liability standard but some modification of this standard seems inevitable.

Improving Intellectual Property Laws

Because it is so difficult to establish who is at fault in product liability cases, an alternative method would be to tighten down on intellectual property laws. For instance, there are intellectual property experts such as Eugene Volokh of The Volokh Conspiracy who will attest to intellectual property laws being too lax when it comes to software licensing. As beneficial as the Creative Commons license and other such OSLs are, they have a potentially harmful aspect to them. I believe that the underlying software that provides the blueprint for the products could be licensed out with better terms and conditions. Ultimately, it comes down to what is stated in the contract.

Most of these open source licenses have tenuous terms and at times leave out essential provisions. This allows anyone to build off the source code. This complicates things because now we don't know who owns the rights to the copyright. If the terms are laid out clearly, then the person harmed by the product will know who to go after. As this whole issue deals with who should be held liable, the actual manufacturers could place safeguards against potential lawsuits by including indemnification clauses in their contracts. These indemnification clauses would be directed against the developers of the underlying software. Indemnification means that in a lawsuit, whoever is listed under the indemnification will pay for the damages that arise out of the lawsuit. This is one way of identifying who should be liable and also provides safeguards to parties that do not want to be held to the strict liability standard. 

Authored by Sam Behbehani, LegalMatch Legal Writer