QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE.
The First Department, reversing Supreme Court, over an extensive dissent, determined questions of fact about whether a zip line was negligently constructed and whether the risks of using the zip line were obvious precluded summary judgment in favor of defendant. Defendant (Skoler) designed and built the zip line with plaintiff’s assistance. Plaintiff alleged the braking system did not work when he used the zip line and he was injured when he struck the end-point tree and fell off the seat onto a boulder:
Plaintiff concedes that, had he merely lost his grip and fallen off the seat while riding the zip line, he would be barred from recovery because that is an inherent risk of zip-lining. However, his claim is not that he fell victim to such a common hazard. Rather, it is that the zip line was negligently constructed by defendant and that he had no way of knowing that. A person cannot be said to have assumed the risk of being injured by faulty equipment when he was unaware that the equipment was faulty … .
The record is replete with facts that prevent us from determining, as a matter of law, that any risk encountered by plaintiff was inherent in zip-lining and not enhanced by Skoler’s negligence, or that it was, or should have been, obvious to plaintiff. Even in granting the motion, the motion court conceded that there was evidence that the brake malfunctioned. Indeed, plaintiff testified that he failed to slow down as Skoler had done only moments before, even though his ride was not otherwise any different from Skoler’s. Thus, we can assume for purposes of this motion that the brake failed … . Zelkowitz v Country Group, Inc., 2016 NY Slip Op 05732, 1st Dept 8-4-16
NEGLIGENCE (QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE)/ASSUMPTION OF THE RISK (QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE)/ZIP LINE (QUESTIONS OF FACT WHETHER ZIP LINE WAS DEFECTIVE AND WHETHER PLAINTIFF KNEW OR SHOULD HAVE KNOWN OF THE RISKS OF USING THE ZIP LINE)