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RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT).

The Second Department determined an indoor rock-climber’s action against the defendant rock-climbing facility properly survived defendant’s motion for summary judgment. The released signed by the plaintiff was invalid pursuant to the General Obligations Law. And the assumption of risk doctrine did not preclude the suit because the complaint alleged a concealed risk (a gap between two mats concealed by velcro):

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… [T]he release of liability that the injured plaintiff signed is void under General Obligations Law § 5-326 because the defendant’s facility is recreational in nature … .

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“Relieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . Moreover, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … .

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk applies. The defendant submitted the injured plaintiff’s deposition testimony, which reveals triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the injured plaintiff’s accident involved an inherent risk of rock climbing … . Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion was properly denied, regardless of the sufficiency of the opposition papers… . Lee v Brooklyn Boulders, LLC, 2017 NY Slip Op 08660, Second Dept 12-13-17

 

NEGLIGENCE (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/ASSUMPTION OF THE RISK (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/RELEASE (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/GENERAL OBLIGATIONS LAW (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))/RECREATIONAL FACILITY (ASSUMPTION OF THE RISK, (INDOOR ROCK CLIMBING, RELEASE SIGNED BY PLAINTIFF INDOOR ROCK CLIMBER INVALID PURSUANT TO GENERAL OBLIGATIONS LAW, COMPLAINT ALLEGED INJURY CAUSED BY CONCEALED DEFECT WHICH WOULD NOT BE COVERED BY THE ASSUMPTION OF RISK DOCTRINE, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED (SECOND DEPT))

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