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Old 12-09-2012, 08:33 AM   #54
Cindysphinx
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Quote:
Originally Posted by Avles View Post
Didn't mean to be a bother, but it seems like when a legal professional asserts that something is "a matter of law," he or she should have some sort of specific legal principle or precedent in mind to justify that assertion, even if it's just a post on a tennis forum.

By the way, I see that in this case it was actually an appellate panel overturning the judge's summary judgment order. The opinion is here:

http://www.leagle.com/xmlResult.aspx...WAR2-1986-2006
Thank you for the citation. I actually read the majority opinion and dissent. Very interesting.

Bottom line: I think the case is wrongly decided and the dissent is correct. I also note that the case, decided in 1999, hasn't been cited even once. Which suggests to me that it is possibly not especially persuasive authority.

For the few people still reading who might give a flying fig about this discussion, here is the part of the dissent that I think nails the issue:

***********************

" . . . .

First, the majority asserts that Solano and Abrenica were not coparticipants in the sport at the time of the injury because, although Abrenica was still practicing, Solano was no longer participating in the sport because she had concluded the practice session, picked up some balls, and was intending to leave the court unaware that her former partner was about to serve a ball in her direction. Therefore, the reasoning goes, the duty is that owed by a participant in the sport to a nonparticipant.

I believe that this analysis of the respective parties'"participation" in the sport is flawed since its result is to put Solano in the category of a spectator rather than a participant. Participation in the sense we are discussing here does not end when the practice or playing of the game ends, but rather when Solano leaves the playing area. Since Solano was not only in the playing area but still on the practice court, I cannot accept the conclusion that she is no longer "participating" on the basis that it was her intent to leave the court area and that she was unaware of the intent of another player to continue the practice. Until the intent to leave manifests itself with her departure from the zone of danger, she remains a participant.

. . . ."
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