VTKilarney
Well-known member
A defense may be distinct from a counterclaim. For their counterclaim, what damages had the ski area suffered? The loss of its instructor?
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judge-dismisses-mass-familys-lawsuit-against-loon-mountain
- Thread starter Smellytele
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A defense may be distinct from a counterclaim. For their counterclaim, what damages had the ski area suffered? The loss of its instructor?
legalskier
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But I would think the "plaintiff" is the boy, which doesn't explain a "countersuit" against his parents. Unless the reporter is just confused (not an uncommon occurrence).
The portion of the total damages attributable to the plaintiffs negligence. So for example if the damages are a million and plaintiff is responsible for 50%, defendant is only liable for 500k.
If the boy is a minor, the suit would have to have been brought by his parent in their capacity as legal guardian. Hence the counterclaim against them.
bobbutts
New member
Sounds like the right ruling. The countersuit and the other lawsuit against the instructor sound more interesting. Really wonder what the countersuit is about.
the counterclaim is a formality. boiler plate language that appears in virtually every case. It doesnt tell you anything about the situation
its difficult to comment on the actual ruling from the press reports about it. Did the plaintiffs assert claims of negligence against the resort independent of the actions of the instructor involved? Is that what the judge dismissed??? if so, I would agree that the ruling is likely correct. However, if the judge dismissed the claims against the resort by virtue of its vicarious liability for the acts of its employee while in the scope of his employment, I dont think that is correct and I think there is an earlier case holding otherwise.
VTKilarney
Well-known member
Contributory or comparative negligence would be a defense and not a counterclaim.
technically yes, but we are going off the report from the newspaper and who knows how it was asserted in the pleadings.
VTKilarney
Well-known member
Technically? That's like saying that somebody is technically pregnant or that PBR is technically awful beer. Contributory and/or comparative negligence are defenses. Period. FRCP 8 requires contributory negligence to be raised as an affirmative defense.
In any event, I looked up the counterclaim made by Loon Mountain. It's a claim of indemnification. Apparently they paid attention to the fine print included in the application for a season pass.
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fbrissette
Well-known member
PBR is now appearing in every other thread...
So the plaintiffs could get a judgment against Loon and, if Loon prevailed on the counterclaim, they would have to pay it right back to them? Presumably in addition to any other indemnifiable legal expenses incurred by Loon in the process? Wall Street has nothing on these guys.
dlague
Active member
VTKilarney
Well-known member
If the counterclaim sticks, that's exactly right. They would be worse off than before they started even if they won. As it stands right now they have to fight reimbursing Loon's legal fees. There are some defenses to the counterclaim, though.
ah, interesting. Good job.
that may be void as against public policy, but I would think nh law would apply.
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