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DEFENDANTS’ DID NOT DEMONSTRATE AS A MATTER OF LAW THAT THE ASSUMPTION OF THE RISK DOCTRINE APPLIED TO PLAINTIFF’S USE OF DEFENDANTS’ HOVER BOARD IN DEFENDANTS’ DRIVEWAY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants did not demonstrate as a matter of law that  the assumption of the risk doctrine applied to plaintiff’s use of defendants’ hover board in defendants’ driveway. Plaintiff was injured falling off the hover board:

Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues” … . Here, the plaintiff was operating the hover board in the defendants’ driveway, not a designated athletic or recreational venue; nor did the defendants actively sponsor or promote the activity … . Accordingly, the defendants failed to establish, prima facie, that the doctrine of primary assumption of risk applied to the circumstances of this case … . Scally v J.B., 2020 NY Slip Op 05791, Second Dept 10-14-29

 

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Criteria for Disclosure from Nonparty Witness
THE FACT THAT BOTH PLAINTIFF AND THE COW PLAINTIFF WAS WALKING FELL, WITH THE COW LANDING ON PLAINTIFF’S FOOT, DID NOT REQUIRE THAT PLAINTIFF SUE IN STRICT LIABILITY BASED UPON AN ANIMAL’S VICIOUS PROPENSITIES; PLAINTIFF RAISED A QUESTION OF FACT ABOUT WHETHER THE CAUSE OF THE FALL WAS THE SLIPPERY CONDITION OF THE FLOOR, NOT THE ACTIONS OF THE COW (SECOND DEPT).
CVS, A DEFENDANT IN THIS MEDICAL MALPRACTICE ACTION, HAD BEEN AWARDED SUMMARY JUDGMENT WHICH IS THE EQUIVALENT OF JUDGMENT AFTER TRIAL; DEFENDANT DOCTORS SHOULD NOT HAVE BEEN ALLOWED TO PRESENT EVIDENCE THAT CVS’S PROVIDING PLAINTIFF’S DECEDENT WITH THE WRONG DOSAGE OF MEDICINE MAY HAVE CONTRIBUTED TO HIS DEATH (SECOND DEPT).
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