Question of Fact About Whether Skater Assumed the Risk of a Collision with a Skating Guard Who May Have Acted Recklessly

The Second Department determined a skater may not have assumed the risk of a collision with a skating guard.  There was a question of fact about whether the skating guard had acted recklessly:

Voluntary participants in a sport or recreational activity “may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” … . Although collisions between skaters are a common occurrence, and thus an inherent risk to ice skating …, “participants do not consent to acts which are reckless or intentional” …, or to any “unassumed, concealed or unreasonably increased risks” … .

Here, the evidence submitted by the City in support of its motion failed to establish as a matter of law that the injury-causing event was a known, apparent, or reasonably foreseeable consequence of the plaintiff’s participation in the sport. The City’s submissions raised questions of fact as to whether the conduct of its employee, the skating guard who allegedly caused the plaintiff’s accident, was reckless or intentional and unreasonably increased the risk of a collision … . Kats-Kagan v City of New York, 2014 NY Slip Op 03235, 2nd Dept 5-7-14