You are here: / / QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN...

QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT).

The Fourth Department determined defendants’ motion for summary judgment was properly denied because there was a question of fact whether the assumption of the risk defense applied in this boating accident case. Plaintiff was in a beginner’s sailing program. Her boat capsized and she was struck by the boom when she attempt to right it. Defendants had not provided any capsize-recovery training:

​

“The assumption of [the] risk doctrine applies as a bar to liability where a consenting participant in sporting or recreational activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ “… . “However, the doctrine of primary assumption of [the] risk will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” … . Here, even assuming, arguendo, that defendants established as a matter of law that plaintiff assumed the risks inherent in sailing, we conclude that plaintiff raised triable issues of fact whether defendants unreasonably increased the risks associated with sailing by failing to provide any capsize recovery training to plaintiff and by letting plaintiff sail on the lake under the weather conditions present on the day of the accident … . Ulin v Hobart & William Smith Colls., 2018 NY Slip Op 00985, Fourth Dept 2-9-18

NEGLIGENCE (SAILING, ASSUMPTION OF THE RISK, QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT))/ASSUMPTION OF RISK (SAILING, QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT))/SAILING (ASSUMPTION OF RISK, QUESTION OF FACT WHETHER BEGINNING SAILOR ASSUMED THE RISK OF INJURY WHEN TRYING TO RIGHT A CAPSIZED BOAT, DEFENDANTS PROVIDED NO CAPSIZE-RECOVERY TRAINING (FOURTH DEPT))

You might also like
THE CONTRACT WAS AMBIGUOUS CONCERNING WHETHER PLAINTIFF OR DEFENDANT WAS RESPONSIBLE FOR PAYING PROPERTY TAXES; THEREFORE THE DEFENDANT’S COUNTERCLAIM, WHICH WAS BASED UPON AN INTERPRETATION OF THE CONTRACT, SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​
PLAINTIFF, WHO FELL THROUGH A HOLE IN A HOUSE UNDER CONSTRUCTION, WAS NOT ENGAGED IN CONSTRUCTION WORK COVERED BY LABOR 240 (1) OR 241 (6), PLAINTIFF WAS MEASURING WINDOWS FOR FUTURE INSTALLATION OF WINDOW TREATMENTS (FOURTH DEPT).
IF POSSIBLE, A RECONSTRUCTION HEARING MUST BE HELD TO DETERMINE DEFENDANT’S COMPETENCY AT THE TIME HE ENTERED A GUILTY PLEA, IF A HEARING CANNOT BE HELD THE PLEA MUST BE VACATED.
UNDER THE TERMS OF THE MORTGAGE, THE DEATH OF THE BORROWER DID NOT ACCELERATE THE DEBT; BECAUSE THE DEBT WAS NOT ACCELERATED THE INSTALLMENT PAYMENTS FOR THE SIX YEARS PRIOR TO THE COMMENCEMENT OF THE FORECLOSURE ACTION WERE STILL OWING AND THE ACTION WAS NOT BARRED BY THE STATUTE OF LIMITATIONS (FOURTH DEPT).
THE MERE PRESENCE OF A REINSTATEMENT CLAUSE IN THE MORTGAGE, WHICH ESSENTIALLY ALLOWS A BORROWER IN DEFAULT TO PAY THE ARREARS AND STOP THE ACCELERATION OF THE DEBT, DOES NOT AFFECT OR IMPEDE THE ACCELERATION OF THE DEBT WHEN A FORECLOSURE ACTION IS STARTED; THE DEBT HERE WAS ACCELERATED WHEN THE FIRST FORECLOSURE ACTION WAS COMMENCED IN 2009 RENDERING THE INSTANT FORECLOSURE ACTION TIME-BARRED (FOURTH DEPT).
THE JUDGE SHOULD NOT HAVE RELIED ON EVIDENCE GIVEN AT A MATERIAL WITNESS HEARING, FROM WHICH DEFENDANT WAS PROPERLY EXCLUDED, AT A SUBSEQUENT SIROIS HEARING AT WHICH THE WITNESS DID NOT TESTIFY (FOURTH DEPT).
DEFENDANT’S EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE ARM-WRESTLED WITH PLAINTIFF; THEREFORE THE EMPLOYER WAS NOT LIABLE FOR THE ALLEGED INJURY TO PLAINTIFF UNDER A RESPONDEAT SUPERIOR THEORY (FOURTH DEPT).
DEFENDANT’S GUILTY PLEA WAS COERCED BY THE JUDGE’S THREAT TO IMPOSE A HEAVIER SENTENCE IF CONVICTED AFTER TRIAL; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

QUESTIONS OF FACT WHETHER (1) DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF... PLAINTIFF STRUCK BY A LACROSSE BALL THROWN BY A COACH DURING PRACTICE, THE ACTION...