Mansell, Engel & Cole

Is a jumbo, decorative beach ball an amusement device?

It all happened at an event called "RumFest" in another state. A pair of local night clubs that were sponsoring the event put jumbo-sized, decorative inflatable beach balls in a fountain pond. They were never intended to be used as actual balls but merely to lend ambiance, according to the night clubs.

Unfortunately, an unknown attendee set the balls loose. A man named Hunt saw a ball coming at his head and reflexively pushed it into the air. Unfortunately, the motion caused serious tendon and ligament injuries in his shoulder and elbow.

He sued, alleging that the clubs had been negligent in maintaining their premises, by providing the oversized beach balls, by failing to supervise or monitor the balls' use and by failing to train their employees to prevent festival goers from liberating the balls.

Luckily for the two night clubs, they had commercial general liability coverage through the Appellee, Princeton Excess & Surplus Lines Insurance Company (PESLIC). They assumed the coverage would require the insurance company to defend the lawsuit and pay for any proven damages.

At first, PESLIC agreed to pay. However, it then pointed to an exclusion in the policy: amusement devices. It decided that the decorative beach balls counted as amusement devices, and were thus excluded from coverage, even though they were not on a list of excluded amusement devices in the policy.

But that's why we bought the policy

The night clubs argued that PESLIC was well aware of the planned use of the decorative beach balls. They also argued that the balls were never intended to be "thrown, struck, punched or otherwise batted around," so they shouldn't be considered amusement devices.

The night clubs insisted that the whole point of buying a commercial general liability policy was to be indemnified for injuries like Hunt's.

A district court ruled that the balls were amusement devices, meaning that PESLIC did not have to defend the suit or pay the liability claim. The two night clubs have appealed. On appeal, the court will reconsider the definition of the term "amusement device."

There are a couple of takeaways from this situation. First, it's crucial to know what activities and devices are excluded from your general liability policy. If in doubt, avoid pushing the limits of the policy.

Second, the night clubs may have been negligent in allowing the balls to be tossed around. A great deal of liability can be avoided by taking reasonable steps to supervise events and rein in any crowd excesses.

Do you think jumbo-sized, decorative beach balls placed in a fountain are amusement devices? Do you think PESLIC should have to defend the liability claim?

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