Cernansky v. Lefebvre et al

Filing 53

OPINION AND ORDER denying as moot 45 Motion to Exclude Expert Witness and Expert Testimony; granting 49 Motion for Summary Judgment. Signed by Judge William K. Sessions III on 12/15/2016. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

CHARLES CERNANSKY individually and
in his capacity as EXECUTOR
OF THE ESTATE OF PETER CERNANSKY,
Plaintiff,

:
:
:
:
:
v.
:
:
TYLER LEFEBVRE, and RUSS OWEN d/b/a :
SODA FACTORY SKATE BOARDS
:
Defendants.
:

Case No. 2:14-cv-00180

OPINION AND ORDER
Plaintiff Charles Cernansky brings the present action against Tyler
Lefebvre (“Lefebvre”) and Russ Owen, doing business as Soda Factory Skate
Boards, following the death of his son, Peter Cernansky (“Cernansky”). On
April 26, 2016, Defendant Lefebvre filed a motion for summary judgment
pursuant to Fed. R. Civ. P. 56. ECF No. 49. In addition, Defendant Lefebvre
filed a motion to exclude an expert witness on March 7, 2016, and contends
that this expert’s report should not be considered at the summary judgment
stage. ECF No. 45; ECF No. 52.
FACTUAL BACKGROUND
Defendant Tyler Lefebvre and Peter Cernansky were freshman year
roommates at Champlain College in Burlington, Vermont. Lefebvre and Cernansky
had exchanged messages before moving in together and had lived together for
four days before the incident in question. On August 28, 2012, Cernansky
asked Lefebvre if he could join him and a group of friends who were going to
go skateboarding to a local skate shop. Lefebvre agreed and allowed Cernansky
to pick out and borrow one of his longboards. He did not specifically warn
Cernansky of the risks inherent in the use of the longboard or provide
Cernansky with a helmet.

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The young men began riding their boards on flat ground down South
Willard Street. When they reached a hill, they paused for a minute before
heading down the hill. As Cernansky went down the hill, he gained speed and
his board began to “speed wobble,” causing him to lose control. About halfway
down the hill, Cernansky fell off the board and hit the back of his head. He
died two days later as a result of this injury.
Prior to leaving Champlain College on that day, Lefebvre did not know
that Cernansky was inexperienced at longboarding. After the accident,
Lefebvre stated to the police that he did not know how good of a longboarder
Cernansky was at the time that he lent Cernansky the longboard. Lefebvre made
a consistent statement during the police interview that he then believed that
Cernansky was inexperienced, but that neither he nor the other young men who
went skateboarding with him were aware of Cernansky’s inexperience before the
accident occurred. Rather, Lefebvre knew that Cernansky was an avid surfer,
and assumed, based on his surfing background, that Cernansky also owned a
skateboard. Prior to the accident, Lefebvre either asked Cernansky if he had
skateboarded or if he had longboarded before, and Cernansky replied that he
had. All of these statements are consistent with the notion that Lefebvre
assumed that Cernansky had some relevant experience before the group set out
to the skate shop, but that he did not understand that Cernansky was as
inexperienced as he now believes him to have been on the day in question.
Nor did Lefebvre become aware of Cernansky’s inexperience at some point
after the group began skateboarding but before they reached the hill on which
the accident occurred. One of the young men in the group, Damian Dryjas
(“Dryjas”), stated to the police that “we started going out, and then we
noticed that … he was struggling in the back for a bit, and … I … just … kind
of had the idea that he never really … done it before.” Dryjas did not tell
Lefebvre of these observations, nor did he say that Lefebvre specifically
understood, based on watching Cernansky skate on flat ground, that Cernansky

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had never skated with such a board before, or that Cernansky fell behind the
group at this point. In contrast, in his deposition, Lefebvre stated that he
saw Cernansky “pushing down South Willard with the rest of us, and he was
pushing the skateboard just fine.” Although Lefebvre reported to the police
that he was in front of Cernansky while they skated on flat ground, he did
not think that Cernansky was having difficulties at that point because “he
stayed with the pack.” Similarly, Matthew Falconer (“Falconer”), the other
young man in the group, stated in his deposition that Cernansky “seemed fine”
before getting to the hill. Although he recognized that this “probably wasn’t
a good observation” because he was skating while others were skating around
him, he stated that Cernansky “wasn’t falling behind, or he didn’t fall at
all, on the way down there.”
STANDARD OF REVIEW
Summary judgment should be granted if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “[O]n summary judgment
the inferences to be drawn from the underlying facts ... must be viewed in
the light most favorable to the party opposing the motion.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986) (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)) (internal quotations
omitted).
DISCUSSION
1. Lefebvre did not owe Cernansky a duty to warn
This Court previously held that Plaintiff’s failure to warn claim against
Lefebvre sounds in negligence. In order to prevail on a negligence claim,
Plaintiff must establish that Lefebvre owed Cernansky a duty of care, that he
breached that duty of care, that the breach was the proximate cause of
Cernansky’s injuries and that Cernansky suffered actual loss or damage as a
result. See Lenoci v. Leonard, 21 A.3d 694, 697–98 (Vt. 2011); Endres v.

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Endres, 968 A.2d 336, 340 (Vt. 2008). “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, 933
A.2d 200, 204 (Vt. 2007). “Circumstances and dangers are always to be taken
into account in determining what is due care or the evidence of it.” LaFaso
v. LaFaso, 223 A.2d 814, 817 (Vt. 1966).
Here, Lefebvre did not have a duty to warn Cernansky of the risk of
potential injuries because he did not know that Cernansky was inexperienced
at longboarding before the accident occurred. Rather, Lefebvre assumed that
Cernansky had some relevant experience before the group began skating
(although he wasn’t certain as to his level of experience) because Cernansky
represented to Lefebvre that he had either skateboarded or longboarded before
and because of Cernansky’s surfing background. After the group began skating,
Lefebvre’s limited observations did not challenge these assumptions. Even
inferring from Dryjas’ statement, as this Court must, that Lefebvre also
noticed that “[Cernansky] was struggling in the back for a bit,” Lefebvre did
not conclude that Cernansky was inexperienced because Cernansky was able to
keep up with the group when they were approaching the hill. In light of these
facts, no reasonable jury could find that Lefebvre should have foreseen that
Cernansky would suffer a fatal injury as a result of his failure to provide
additional warnings about the board.
Moreover, the benefit of wearing a helmet while skating down a hill is
obvious regardless of one’s knowledge of longboarding. Therefore, it was
reasonable for Lefebvre to conclude that he did not need to inform Cernansky
of that benefit regardless of Cernanksy’s experience level. As a result, the
Court finds that Lefebvre did not have a duty to warn Cernansky of the
benefits of wearing a helmet as a matter of law.
2. Cernansky assumed the risk of falling off the board

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Next, Lefebvre contends that the Plaintiff’s recovery is barred by 12
V.S.A. §1037, which provides that “a person who takes part in any sport
accepts as matter of law the dangers that inhere therein insofar as they are
obvious and necessary.” Contrary to Plaintiff’s contention, the determination
that a danger is obvious and necessary is not necessarily a jury question. In
fact, the very case that Plaintiff puts forth in support of this argument
overruled a trial court’s summary judgment decision on the question of
whether a danger was obvious and necessary only because the plaintiff there
had raised a disputed factual issue about whether a risk was “necessary”
within the meaning of the statute. Estate of Frant v. Haystack Grp., Inc.,
641 A.2d 765, 766 (Vt. 1994). Where discovery has not produced such a
material dispute of fact, courts have granted summary judgment on this
question. See, e.g., Nelson v. Snowridge, Inc., 818 F. Supp. 80, 84 (D. Vt.
1993).
Even if this Court were to accept the report of the Plaintiff’s expert,
there is no material dispute of fact that the risk of falling off of a
longboard at high speeds is obvious and necessary. Plaintiff’s expert, Dr.
Gerald George, provides two primary opinions. First, he states that it is
more probable than not that Cernansky did not appreciate that speed wobbles
constitute a dangerous condition because speed wobbles are a “hidden risk.”
Second, Dr. George states that if Cernansky had been warned of the “hidden
risk” of speed wobbles and of the importance of wearing a helmet, his chance
of sustaining a fractured skull would have been minimal. These opinions,
however, do not run counter to the Court’s finding that the danger of falling
off of a longboard at high speeds is “obvious and necessary,” as those terms
are interpreted under Vermont law.
Under the primary assumption of risk doctrine, which 12 V.S.A. §1037
was intended to codify, a risk is obvious if it is inherent in the nature of
the sport. Estate of Frant, 641 A.2d 767. Both Lefebvre and Falconer

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testified in their depositions that speed wobbles occur when a rider goes too
fast for his comfort and loses his balance. Dr. George also recognizes that
speed wobbles “can and do occur in downhill long boarding.”

Because the term

“obvious” does not “mean something easily observed,” Dr. George’s conclusion
that the risk of speed wobbles was a “hidden risk that the novice participant
would not know about” is irrelevant to this Court’s legal analysis. Id.
Rather, the risk of speed wobbles, which amounts to nothing more than going
too fast and losing one’s balance, is obvious because it is inherent to
longboarding.
Moreover, a risk is “necessary” under the terms of the statute if the
effort required to remove it would be impossible to undertake or would impose
an unreasonable burden. Id.; Nelson v. Snowridge, Inc., 818 F. Supp. 80, 83
(D. Vt. 1993) (finding that ice is a necessary condition of skiing because
“despite exhaustive grooming efforts, ice still remains evident on at least
some portion of most ski slopes in the East” and “[i]f a ski area were
required to close a trail every time there was ice present, it would surely
be forced to curtail its operations for a good part of the ski season”).
Evidence of common practices used to avoid a well-known hazard would tend to
refute a finding that the risk was necessary. Id. Here, Falconer testified
that the only way to prevent speed wobbles is to go at a comfortable speed by
carving across the road as one travels downhill. However, the Plaintiff
presented no evidence that the risk of losing one’s balance while going too
quickly could be eliminated. Therefore, the Court finds that the risk of
falling off of a board due at high speeds is obvious and necessary, and that
Plaintiff’s recovery is also barred by 12 V.S.A. §1037.
CONCLUSION
For the reasons set forth above, Defendant Lefebvre’s motion for
summary judgment (ECF No. 49) is granted, and his motion to exclude an expert
witness (ECF No. 45) is denied as moot.

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Dated at Burlington, in the District of Vermont, this 15th day of
December, 2016.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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