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Cernansky v. Lefebvre

United States District Court, D. Vermont

January 28, 2015

CHARLES CERNANSKY, individually and in his capacity as EXECUTOR OF THE ESTATE OF PETER CERNANSKY, Plaintiff,
v.
TYLER LEFEBVRE, PIONEERS BOARD SHOP, INC., and RUSS OWEN d/b/a SODA FACTORY SKATE BOARDS, Defendants

Page 300

[Copyrighted Material Omitted]

Page 301

For Charles Cernansky, individually and in his capacity as Executor of the estate of Peter Cernansky, Plaintiff: Matthew G. Hart, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT.

For Tyler Lefebvre, Defendant: Pietro J. Lynn, Esq., Lynn, Lynn & Blackman, P.C., Burlington, VT.

For Pioneers Board Shop, Inc., Defendant: Thomas P. Aicher, Esq., Cleary Shahi & Aicher, P.C., Rutland, VT.

Russ Owen, doing business as Soda Factory Skate Boards, Defendant, Pro se, Bristol, RI.

Page 302

OPINION AND ORDER

William K. Sessions, III, United States District Judge.

On August 28, 2012, Peter Cernansky fell while riding a skateboard-like device known as a long board. 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 Lefebvre, Peter's college roommate and owner of the long board, argues that he had no duty to warn of obvious hazards and that Peter assumed the risk of long boarding. Defendant Pioneers Board Shops, Inc. (" Pioneers" ), the New Hampshire shop that allegedly sold the long board, 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.

Page 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 long board. 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 longboarding. 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. Lefebvre 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 Lefebvre and Pioneers dispute the allegation that Pioneers sold or otherwise provided the " Day Walker" board.

The Complaint alleges that Defendant Russ Owen d/b/a Soda Factory Skate Board (" Owen" ) manufactured the longboard. Owen has filed an answer to the Complaint and is proceeding pro se. Levebvre 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 longboarding. A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of the plaintiff's 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 plaintiff's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation ...


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