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QUESTION OF FACT WHETHER DEFENDANT-CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM AND WHETHER THERE WAS AN INTERVENING, SUPERSEDING CAUSE OF THE INJURY, CRITERIA FOR BOTH EXPLAINED.

The Third Department, reversing Supreme Court, determined defendant-contractor’s motion for summary judgment should not have been granted. Defendant contracted with the NYS Department of Transportation (DOT) to do roadwork. Plaintiff alleged the roadwork caused the car in which he was a passenger to go airborne. The Third Department found that the alleged excessive speed attributed to the driver of the car was not unforeseeable as a matter of law. Therefore, there was a question of fact whether the speed was the superseding cause of the accident. The court explained the law re: tort liability to third persons arising from contract, and an intervening, superseding cause of injury:

 

… “[A] party who enters into a contract to render services may be said to have assumed a duty of care — and thus be potentially liable in tort — to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties[;] and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely” … . “The general rule is that ‘[a] builder or contractor is justified in relying upon the plans and specifications which he [or she] has contracted to follow unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury'” * * *

… “[W]here the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus” … . Whether an intervening act is a superseding cause is generally a question of fact, but there are circumstances where it may be determined as a matter of law … . Dunham v Ketco, Inc., 2016 NY Slip Op 00082, 3rd Dept 1-7-16

 

 

 

 

 

 

NEGLIGENCE (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/NOTICE OF CLAIM (THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM CANNOT BE INCLUDED IN SUPPLEMENTAL BILL OF PARTICULARS)/BILL OF PARTICULARS (CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)/MUNICIPAL LAW (BILL OF PARTICULARS CANNOT BE SUPPLEMENTED TO INCLUDE THEORIES NOT FAIRLY IMPLIED FROM NOTICE OF CLAIM)

CAUSES OF ACTION ALLEGING PROMOTERS OF A MUSIC FESTIVAL NEGLIGENTLY FAILED TO CURTAIL THE USE OF DRUGS AT THE FESTIVAL AND NEGLIGENTLY FAILED TO PROVIDE ADEQUATE EMERGENCY MEDICAL FACILITIES AT THE FESTIVAL PROPERLY SURVIVED MOTIONS TO DISMISS.

The Third Department determined plaintiff stated causes of action sounding in negligence against the promoters of a music festival, called Camp Bisco. Plaintiff’s daughter, Bynum, ingested a harmful substance at the festival. The complaint alleged defendants failed to take adequate measures to prevent the use of drugs at the festival and failed to make sure there were adequate emergency medical facilities at the festival:

 

Mass gathering permittees, such as defendants, “have a common-law duty to minimize foreseeable dangers on their property, including the criminal acts of third parties” … . “The scope of that duty is defined according to the likelihood that such behavior will occur and endanger [attendees] based on past experience” … . Accepting as true plaintiff’s allegations that defendants knew or should have known of the widespread presence and use of illegal drugs at this annual festival, known as Camp Bisco, we find that plaintiff has adequately stated a cause of action for negligence based on defendants’ alleged failure to exercise reasonable care in curtailing the use of illegal drugs on the festival grounds.

As for plaintiff’s separate cause of action for negligence based upon defendants’ alleged failure to provide adequate onsite emergency medical services, defendants, as mass gathering permittees, had a clear duty to provide such services pursuant to the State Sanitary Code (see 10 NYCRR 7-4.3 [n]; 18.3 [b]; 18.4 [a]). According to plaintiff’s allegations, defendants knew that Camp Bisco had increased in size every year and that, in 2011, over 26,000 people were in attendance. Plaintiff further asserts that, despite their apparent knowledge, defendants circumvented their duty to provide the proper level of medical services at the festival by misrepresenting to the relevant permitting authorities that the maximum attendance for the 2012 edition of Camp Bisco attended by Bynum would be just 12,000 people (see 10 NYCRR 18.4 [a] [1], [2]). Accepting plaintiff’s further statement that defendants’ provision of inadequate medical services was a proximate cause of Bynum’s injuries, we find that these allegations state a cognizable theory of negligence as well … . Bynum v Keber, 2016 NY Slip Op 00093, 3rd Dept 1-7-16

 

NEGLIGENCE (CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/MUSIC FESTIVALS (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/DRUG USE (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)/MEDICAL FACILITIES (NEGLIGENCE CAUSES OF ACTION AGAINST PROMOTERS OF MUSIC FESTIVAL RE: FAILURE TO CURTAIL USE OF DRUGS AND FAILURE TO PROVIDE ADEQUATE MEDICAL FACILITIES SURVIVED MOTIONS TO DISMISS)

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PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENDANT’S VOCATIONAL REHABILITATION EXPERT.

The Third Department, overruling its own precedent, determined plaintiff, in this Labor Law 200, 240(1) and 241(6) action, could properly be compelled to submit to an examination by defendant's vocational rehabilitation expert:

CPLR 3101 “broadly mandates full disclosure of all matter material and necessary in the prosecution and defense of an action” … . “The words 'material and necessary' as used in [CPLR] 3101 must 'be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'” … . To properly exercise such discretion, a trial court must balance the need for discovery “against any special burden to be borne by the opposing party” … . If the trial court has engaged in such balancing, its determination will not be disturbed in the absence of an abuse of discretion … .

… While we previously held that there is “no statutory authority to compel the examination of an adverse party by a nonphysician vocational rehabilitation specialist” … , the Court of Appeals has since confirmed that the mandate for broad disclosure is not necessarily limited by the more specific provision of the CPLR that allows a defendant to demand that a plaintiff submit to a physical or mental examination “by a designated physician” (CPLR 3121 [a]) where his or her medical condition is at issue … . Accordingly, the circumstances of a case may allow such a demand even in the absence of express statutory authority … . We agree with the conclusion reached by the other Departments that such circumstances are not limited to those cases where a plaintiff has retained a vocational rehabilitation expert to establish damages, although, generally, such testing “might well be unduly burdensome”… .

… [Plaintiff] placed his ability to work in controversy by claiming that, as a result of his injuries, he suffered loss of future wages and reduced earning capacity and by testifying at his examination before trial that his future career opportunities were limited … . Hayes v Bette & Cring, LLC, 2016 NY Slip Op 00090, 3rd Dept 1-7-16

LABOR LAW (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/NEGLIGENCE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPDERT)/CIVIL PROCEDURE (PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/VOCATIONAL REHABILITATION EXPERT (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)/DISCLOSURE (LABOR LAW, PLAINTIFF COMPELLED TO SUBMIT TO EXAMINATION BY DEFENSE VOCATIONAL REHABILITATION EXPERT)

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EXPERT EVIDENCE OF A RECALL AND EVIDENCE OF CUSTOMER COMPLAINTS ABOUT DEFENDANTS’ MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN.

The Fourth Department, eliminating restrictions on the evidence imposed by Supreme Court, determined evidence from plaintiffs’ electrical expert and evidence of customer complaints were relevant to defendants’ duty to warn. Plaintiffs alleged an electrical defect in their motorcycle (manufactured by defendants) caused the accident. Plaintiffs sought to introduce evidence of a recall made prior to the accident and evidence of customer complaints:

… [W]e conclude that the court erred in granting that part of defendants’ motion seeking to preclude the testimony of plaintiffs’ electrical engineer expert and the customer complaints to the extent that such evidence is relevant to defendants’ continuing duty to warn. We therefore modify the order accordingly. “A manufacturer or retailer may . . . incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale . . . through being made aware of later accidents involving dangers in the product of which warning should be given to users . . . Although a product [may] be reasonably safe when manufactured and sold and involve no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn” … . “What notice . . . will trigger [this] postdelivery duty to warn appears to be a function of the degree of danger which the problem involves and the number of instances reported . . . [Whether] a prima facie case on that issue has been made will, of course, depend on the facts of each case” … .

Defendant’s recall was first issued in March 2004, prior to plaintiffs’ accident on April 30, 2004. A determination that plaintiffs’ motorcycle should have been included in the recall would be relevant to defendants’ duty to warn plaintiffs of the defect that, plaintiffs allege, caused a “quit while riding” event in their motorcycle and thereby caused or contributed to their accident. Plaintiffs’ expert, an electrical engineer, expects to testify in part that plaintiffs’ motorcycle does not differ in any material respect from those included in the 2004 recall, despite the fact that plaintiffs’ motorcycle did not have the same stator as the motorcycles affected by the recall. In our view, the expert’s qualifications as an electrical engineer qualify him to opine whether the motorcycles “were the same in all significant respects” … , and the fact that the expert has done no testing goes to the weight to be given to his testimony, not its admissibility … . Smalley v Harley-Davidson Motor Co. Group LLC, 2015 NY Slip Op 09712, 4th Dept 12-31-15

NEGLIGENCE (PRODUCTS LIABILITY, EVIDENDE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/PRODUCTS LIABILITY (EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)/DUTY TO WARN (PRODUCTS LIABILITY, EVIDENCE OF RECALL AND CUSTOMER COMPLAINTS RE: DEFENDANT’S MOTORCYCLE RELEVANT TO DEFENDANTS’ DUTY TO WARN)

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CLASS ACTION PROPERLY CERTIFIED IN CASE ALLEGING NEGLIGENT DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE.

In an action alleging defendants negligently discharged chemicals into the atmosphere, resulting in a reduction of property values and quality of life, the Fourth Department determined a class action was properly certified. The court explained the criteria:

“[A] class action may be maintained in New York only after the five prerequisites set forth in CPLR 901 (a) have been met, i.e., the class is so numerous that joinder of all members is impracticable, common questions of law or fact predominate over questions affecting only individual members, the claims or defenses of the representative parties are typical of the class as a whole, the representative parties will fairly and adequately protect the interests of the class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy” … . A plaintiff seeking class certification has the “burden of establishing the prerequisites of CPLR 901 (a) and thus establish[ing] . . . entitlement to class certification” … .

Although the individual class members may have sustained differing amounts of damages, it is well settled that ” the amount of damages suffered by each class member typically varies from individual to individual, but that fact will not prevent the suit from going forward as a class action if the important legal or factual issues involving liability are common to the class’ ” … . * * *

… [B]ecause “the typicality requirement relates to the nature of the claims and the underlying transaction, not the amount or measure of damages, [the fact that the class representative’s] damages may differ from those of other members of the class is not a proper basis to deny class certification” … . DeLuca v Tonawanda Coke Corp., 2015 NY Slip Op 09739, 4th Dept 12-31-15

CIVIL PROCEDURE (CLASS ACTION PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/CLASS ACTION (PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/NEGLIGENCE (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)/ENVIRONMENTAL LAW (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)

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SHERIFF IS NOT VICARIOUSLY LIABLE FOR EMPLOYEES OF THE SHERIFF’S DEPARTMENT; SHERIFF, THEREFORE, IS NOT UNITED IN INTEREST WITH THE SHERIFF’S DEPARTMENT OR THE COUNTY; RELATION-BACK DOCTRINE DOES NOT APPLY; SHERIFF CANNOT BE ADDED TO THE COMPLAINT AFTER THE STATUTE OF LIMITATIONS HAS RUN.

Plaintiff sued the county alleging plaintiff’s decedent was not properly screened and supervised when placed in the Erie County Holding Center where plaintiff’s decedent committed suicide. After the statute of limitations had run, plaintiff was allowed to add the Erie County Sheriff as a defendant. The Fourth Department reversed, explaining that the Sheriff is not vicariously liable for the actions of the Sheriff’s Department and is therefore not “united in interest” with the County/Sheriff’s Department:

In order for the relation back doctrine to apply, a plaintiff must establish that “(1) both claims arose out of [the] same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant[s], and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well” … .

…. [Plaintiff did not satisfy the second prong, i.e., unity of interest. “In [the] context [of this case], unity of interest means that the interest of the parties in the [subject matter] is such that they stand or fall together and that judgment against one will similarly affect the other . . . Although the parties might share a multitude of commonalities, . . . the unity of interest test will not be satisfied unless the parties share precisely the same jural relationship in the action at hand . . . Indeed, unless the original defendant[s] and new [defendant] are vicariously liable for the acts of the other[,] . . . there is no unity of interest between them” … .

Here, defendant County of Erie (County) is not united in interest with the Sheriff inasmuch as the County cannot be held vicariously liable for the alleged negligent acts of the Sheriff or his deputies … . Nor is defendant Erie County Sheriff’s Department (Sheriff’s Department) united in interest with the Sheriff for purposes of the relation back doctrine. The Sheriff is not vicariously liable for the alleged negligent acts of the deputies employed at the Holding Center … . In addition, the Sheriff’s Department does not have a legal identity separate from the County … , and thus an “action against the Sheriff’s Department is, in effect, an action against the County itself” … . Given that the Sheriff and the County are not united in interest, it follows that the Sheriff and the Sheriff’s Department are not united in interest, and the court therefore erred in granting plaintiff’s motion for leave to amend the complaint to add the Sheriff as a party. Johanson v County of Erie, 2015 NY Slip Op 09736, 4th Dept 12-31-15

CIVIL PROCEDURE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/RELATION-BACK DOCTRINE (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/MUNICIPAL LAW  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)/SHERIFF  (SHERIFF NOT VICARIOUSLY LIABLE FOR ACTIONS OF EMPLOYEES OF SHERIFF’S DEPARTMENT AND THEREFORE IS NOT UNITED IN INTEREST WITH THE COUNTY OR SHERIFF’S DEPARTMENT)

QUESTION OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY WAS COMPARATIVELY NEGLIGENT IN COLLISION WITH DRIVER WHO FAILED TO YIELD THE RIGHT OF WAY.

The Fourth Department determined there was question of fact whether the driver of a car with the right of way (defendant) was comparatively negligent in striking a car (driven by Deering) which failed to yield the right of way at an intersection:

There is no dispute that Deering was negligent in failing to yield the right-of-way or that defendant was entitled to anticipate that she would obey the traffic laws that required her to yield the right-of-way to him … . Nevertheless, in moving for summary judgment, defendant had the burden of establishing not only that Deering was negligent, but also that he was free of comparative fault … . Defendant failed to meet that burden, inasmuch as his own submissions raised triable issues of fact whether he was negligent … . At his deposition, defendant testified that he saw the Deering vehicle at the intersection after he traveled over an elevated overpass on Route 5 that is approximately 300 yards from the intersection, but he looked away and did not see the Deering vehicle before or at the moment of impact. “[I]t is well settled that drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident,’ ” and defendant’s admitted failure to see the Deering vehicle immediately prior to the accident raises an issue of fact whether he violated that duty … . Thus, even though defendant had the right-of-way as he approached Bayview Road, he “may nevertheless be found negligent if he . . . fail[ed] to use reasonable care when proceeding into the intersection’ . . . A driver cannot blindly and wantonly enter an intersection’ ” … . Deering v Deering, 2015 NY Slip Op 09715, 4th Dept 12-31-15

NEGLIGENCE (DRIVER WITH RIGHT OF WAY MAY BE COMPARATIVELY NEGLIGENT IN STRIKING CAR WHICH FAILED TO YIELD)/RIGHT OF WAY (DRIVER WITH RIGHT OF WAY MAY BE COMPARATIVELY NEGLIGENT IN STRIKING CAR WHICH FAILED TO YIELD)

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RECORDINGS OF 911 CALLS RE: PLAINTIFF’S DECEDENT’S CAR ACCIDENT DISCOVERABLE IN A WRONGFUL DEATH ACTION.

In a matter of first impression at the appellate level, the Second Department determined the recordings of 911 calls relating to plaintiff’s decedent’s (Reece’s) car accident were discoverable. The wrongful death action was brought against the state alleging that a traffic counting device shattered when plaintiff’s decedent’s car drove over it, puncturing the gas tank and causing a fire which killed plaintiff’s decedent and two children. The claimant served a subpoena upon non-party county for the recordings and the county moved to quash the subpoena. The Second Department held that the motion to quash was properly denied:

The County moved to quash the subpoena on the ground that under County Law § 308(4), 911 recordings and documents are not discoverable by any entity or person other than certain designated public agencies and emergency medical providers. The claimant opposed the motion and thereafter moved to compel discovery of, inter alia, the 911 tapes, arguing that they were discoverable under CPLR 3101 as material and relevant matter. Specifically, the claimant argued that the material may be expected to reveal why Reece’s vehicle left the roadway, the length of time the vehicle’s occupants experienced conscious pain and suffering, and the amount of time it took for police to respond to the scene. * * *

We view the language of County Law § 308(4) as generally prohibiting entities and private individuals from accessing 911 tapes and records … . However, the statute is not intended to prohibit the disclosure of matter that is material and relevant in a civil litigation, accessible by a so-ordered subpoena or directed by a court to be disclosed in a discovery order … . Indeed, in analogous criminal practice, 911 tapes and records are frequently made available to individual defendants as part of the People’s disclosure obligations pursuant to People v Rosario (9 NY2d 286…) and are admitted at trials to describe events as present sense impressions of witnesses … , to identify perpetrators as present sense impressions … , or as excited utterances … . Clearly, the general language of County Law § 308(4), which is part of the statute governing the establishment of an emergency 911 system in various counties, cannot be interpreted as prohibiting court-ordered discovery of 911 material in civil litigation. Anderson v State of New York, 2015 NY Slip Op 09648, 2nd Dept 12-30-15

CIVIL PROCEDURE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/MUNICIPAL LAW (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/EVIDENCE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/NEGLIGENCE (911 TAPES DISCOVERABLE IN WRONGFUL DEATH ACTION)/WRONGFUL DEATH (911 TAPES DISCOVERABLE)/911 TAPES (DISCOVERABLE IN WRONGFUL DEATH ACTION)

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DEFENDANTS DID NOT DEMONSTRATE CEMENT PATCH WAS A TRIVIAL DEFECT AS A MATTER OF LAW; NO EVIDENCE OF DIMENSIONS OF DEFECT SUBMITTED.

The Second Department determined defendants did not demonstrate, as a matter of law, that the cement patch over which plaintiff allegedly tripped was a trivial defect. The defendants did not submit evidence of the dimensions of the defect:

“[T]here is no minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Photographs that fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable … .

Here, in support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiff and photographs which the plaintiff claimed accurately depicted the condition that allegedly caused her to fall. Viewed in the light most favorable to the plaintiff, as the nonmovant … , the evidence submitted by the defendants failed to establish their prima facie entitlement to judgment as a matter of law. No evidence was elicited as to the dimensions of the defect at the time of the accident. In light of the photographs, which depict the irregular nature of the sidewalk, as well as the time, place, and circumstance of the plaintiff’s fall, it cannot be said as a matter of law that the condition at issue was trivial as a matter of law and therefore not actionable … . Mazza v Our Lady of Perpetual Help R.C. Church, 2015 NY Slip Op 09657, 2nd Dept 12-30-15

NEGLIGENCE (CEMENT PATCH WAS NOT TRIVIAL DEFECT AS A MATTER OF LAW)/TRIVIAL DEFECT (SLIP AND FALL, CEMENT PATCH WAS NOT A TRIVIAL DEFENCE AS A MATTER OF LAW)/SLIP AND FALL (CEMENT PATCH WAS NOT TRIVIAL DEFECT AS A MATTER OF LAW)/EVIDENCE (CEMENT PATCH WAS NOT SHOWN TO BE TRIVIAL DEFECT AS A MATTER OF LAW, NO EVIDENCE OF DIMENSIONS OF DEFECT)

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STUDENT ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE.

The Second Department, reversing Supreme Court, determined plaintiff, a high school varsity lacrosse player, assumed the risk of injury during lacrosse practice. Plaintiff alleged the goal was not properly covered by the net and his foot hit the base of the goal, causing him to twist his ankle and fall:

The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” … . “An educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks” … . “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” … . This includes the construction of the playing surface and any open and obvious condition on it … . * * *

… Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint. The defendant established, prima facie, that the plaintiff assumed the risk by voluntarily participating in lacrosse practice where the condition of the goal was not concealed and clearly visible … . Safon v Bellmore-Merrick Cent. High Sch. Dist., 2015 NY Slip Op 09418, 2nd Dept 12-23-15

NEGLIGENCE (STUDENT ATHLETE ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE)/EDUCATION-SCHOOL LAW (STUDENT ATHLETE ASSUMED THE RISK OF INJURY DURING LACROSSE PRACTICE)/ASSUMPTION OF RISK (STUDENT ATHLETE ASSUMED RISK OF INJURY DURING LACROSSE PRACTICE)

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