Opinion
# 2019-038-544 Claim No. 128845 Motion No. M-93360
06-13-2019
In the Matter of the Claim of MEGAN BARNES, an infant by her Parent and Natural Guardian, JANE BARNES v. THE STATE OF NEW YORK
HARRIS, CONWAY & DONOVAN, PLLC By: Ryan T. Donovan, Esq. LETITIA JAMES, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment dismissing claim arising from a minor's fall on the Empire State Plaza skating rink denied. Although defendant established its prima facie entitlement to judgment as a matter of law because claimant did not know how the accident occurred, claimant raised a material issue of fact requiring trial. Summary judgment dismissing the claim on the issue of primary assumption of risk not warranted because the claim and bill of particulars alleged that defendant's negligence in maintaining the ice surface on an unseasonably warm day caused the accident.
Case information
| UID: | 2019-038-544 |
| Claimant(s): | In the Matter of the Claim of MEGAN BARNES, an infant by her Parent and Natural Guardian, JANE BARNES |
| Claimant short name: | BARNES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128845 |
| Motion number(s): | M-93360 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | HARRIS, CONWAY & DONOVAN, PLLC By: Ryan T. Donovan, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 13, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Jane Barnes, as parent and natural guardian of infant Megan Barnes, filed this claim seeking compensation for injuries sustained by Megan Barnes at an outdoor ice skating rink at the Empire State Plaza in Albany, New York on February 20, 2016. Defendant moves for summary judgment dismissing the claim. Claimant opposes the motion, which will be denied for the reasons that follow.
The claim was brought by Jane Barnes as the mother and natural guardian of Megan Barnes. The term "claimant" shall refer to Jane Barnes in this decision and the Court will refer to infant Megan Barnes by her surname. --------
It is well-established that summary judgment is a drastic remedy that may be granted only where the moving party has demonstrated the absence material issues of fact that would require resolution at trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see id.; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]), and the motion must be denied if movant fails to meet this prima facie burden (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., 68 NY2d at 324). The court must view the facts on the motion in a light most favorable to the non-moving party (see Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]), and the motion will be denied if the opponent to the motion raises material issues of fact requiring a trial of the matter (see Alvarez, supra at 324). It is well-established that a court's task in deciding a motion for summary judgment is identification of issues, and not resolution of disputed issues (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 397, 404 [1957]).
The applicable substantive law provides that the State has a duty to maintain its premises "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [1973], cert denied 412 US 939 [1973]). "As the owner of an ice skating rink, [the State] ha[s] "a duty to exercise care to make the rink as safe as it appeared to its patrons" (Nunez v Recreation Rooms and Settlement, 29 AD2d 359, 360 [1st Dept 1996]). In order to establish a breach of the State's duty to maintain its premises in a reasonably safe condition, claimant must establish the existence of a dangerous condition, that defendant either created the dangerous condition or had actual or constructive notice of the dangerous condition, and that the dangerous condition was a proximate cause of claimant's fall (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
When a person is injured engaging in a sport "as a result of a defect in, or feature of, the field, court, track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk," provided that the "risk presented by the condition is inherent in the sport" (Cotty v Town of Southampton, 64 AD3d 251, 254 [2d Dept 2009]). Generally, "one is deemed to have assumed 'those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation' " (Roberts v Boys & Girls Republic, Inc., 51 AD3d 246, 247 [1st Dept 2008], quoting Morgan v State of New York, 90 NY2d 471, 484 [1997]), and a defendant may be relieved of liability "when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Morgan v State of New York, 90 NY2d at 484). While the scope of one's assumption of the risk in engaging in a sport "may vary depending upon a particular [claimant's] capacity to appreciate the risks of an activity, generally one is deemed to have assumed those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" and those "risks attributable to any open and obvious condition of the place where [the sporting activity] is carried on" (Roberts, 51 AD3d at 247-248 [internal quotation marks omitted]). "[I]n assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by [defendant's] negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' " (Morgan, 90 NY2d at 485, quoting Owen v R.J.S. Safety Equip., 79 NY2d 967, 970 [1992]).
In support of its motion, defendant submits the pleadings and the examination before trial (EBT) testimony of claimant and Barnes that establishes the following. In the early afternoon on February 20, 2016, Barnes, who was nine years old, accompanied claimant and other members of her family to the outdoor skating rink at the Empire State Plaza (ESP) in Albany, New York that was operated by the Office of General Services (OGS). Claimant testified at her EBT that it was warm and sunny that day, and that the temperatures had reached approximately 60 degrees Fahrenheit (Krenrich Affirmation, Exhibit D [Jane Barnes EBT, p.9]). Claimant testified that upon arriving at the ice skating rink, she was told by the ice skate rental attendant that "the ice is very wet," that "[t]here's a lot of puddling" and that "you're going to get wet when you fall [on the ice]" (id., p.12). Claimant testified that when they got to the rink "there were little puddles. You know, it was 60 degrees out. So it was wet, the ice" (id.).
Barnes testified at her EBT that she had only been skating one time previously, that she had a hard time skating that afternoon because it was slippery, that she tried going around the rink by hugging the railing bordering the rink and that she was not very good at ice skating and slipped and fell many times as she went around the rink (see id., Exhibit E [Megan Barnes EBT, pp.7, 9, 10-11). Barnes testified that on her second trip around the rink she "think[s] that [her] left skate got stuck in the ice and then [she] went to - reach[] over with [her] left arm to grab the wall and then [she] kind of spun backwards and fell" (id., pp.15-16). Barnes testified that she did not know how her left skate got caught in the ice or whether it got caught in a hole or rut, but she knew that her foot got caught and stopped suddenly and that she spun to the side and reached for the wall with her left hand and fell, and that when she fell her skate was no longer stuck (see id., pp.19-20, 44). Barnes testified that after she fell she did not notice what the ice looked like around her except that it was wet (id., pp.20-21). Claimant testified that she did not witness Barnes fall.
Defendant contends that the failure of Barnes or any other witness to identify the defect that caused her fall is fatal to the claim. Barnes testified that she believed that her left skate got stuck in the ice, but did not know how her skate got stuck or whether it got stuck in a rut or hole. Claimant testified that she did not witness Barnes fall, nor has any other witness been identified. Thus, defendant has established prima facie that it is entitled to judgment as a matter of law because Barnes "provide[d] testimony that . . . she [was] unable to identify the defect that caused . . . her injury" (Siegel v City of New York, 86 AD3d 452, 454 [1st Dept 2011]), and the burden shifts to claimant to raise issues of material fact.
In opposition to the motion, claimant submits weather data from the National Oceanic and Atmospheric Administration, which establishes that temperatures at Albany International Airport were recorded as being 50F at 11:51 a.m., 55F at 12:51 p.m. and 1:00 p.m., and 57F at 1:51 p.m. (Donovan Affirmation, Exhibit H). Further, claimant submits the EBT testimony of Matthew Pollock and Francesca McGuire, who were ice rink attendants employed by OGS who were on duty at the ESP rink the time of Barnes' fall and were responsible for monitoring and recording the ice conditions at the ESP rink on an hourly basis. On February 20, 2016, Pollock recorded on an ESP Ice Condition Report that the ice rink was "wet" at 12:00 p.m., that the rink was in "poor" condition and that the weather was "sun, melty" at 1:00 p.m., and that the rink was in "good" condition at 2:00 p.m (id., Exhibit C). The ESP Ice Condition Report describes "poor" condition as "[i]ce is rutted or rough due to use or weather conditions, snow, sleet or rain, has damaged the surface and ice needs to be mechanically conditioned to improve the surface," while "good" condition is described as being "few or no imperfections" and that the "[i]ce has had little use since last conditioning was completed" (id.). Pollock testified that he didn't remember what he meant when he described the conditions as being "sun, melty" at 1:00 p.m. or if that was the reason the he listed the ice condition as being "poor" (id., Exhibit A [Pollock EBT, p.111]). Further, Pollock testified the he did not know how the ice condition changed from being "poor" at 1:00 p.m. to "good" at 2:00 p.m. and that he did not record whether the ice had been conditioned by the Zamboni machine that day (see id., pp.112, 114-115). McGuire testified at her EBT that if there was a lot of water on the ice and the conditions were "melty," she would consider the ice to be in "poor" condition and not safe (see id., Exhibit E [McGuire EBT, p.51]).
Claimant also submits the testimony of Susan Cleary, OGS Director of Convention and Cultural Events who oversaw the ice rink attendants, and Kevin Barberis, an OGS Maintenance Supervisor who was responsible for the ESP rink. Cleary testified at her EBT that she trained the ice attendants to watch for soft ice, that ice that is too soft can be dangerous for skaters because their skates could get caught in the ice, and that puddled water and soft ice on the rink creates a reason to close the rink (see id., Exhibit D [Cleary EBT, pp.40-41, 58]). Pollock testified that soft ice is "[s]kateable," and that if the ice is "slushy," i.e., a "[w]atery mix with ice," it would not be safe and that it is possible that a skate could get stuck and stop moving in soft ice (id., Exhibit A [Pollock EBT, pp. 39-41]). Barberis testified at his EBT that the ice rink can have soft ice on a sunny day with a temperature of 60F (see id., Exhibit F [Barberis EBT, p.72]).
The claim and the supplemental verified bill of particulars allege that Barnes fell at approximately 2:00 p.m. when her skate got stuck in the "soft, partially melted ice" (Krenrich Affirmation, Exhibit A, ¶ 15; see id., Exhibit C, ¶¶ 3, 14[b]), and that defendant's agents were negligent in "fail[ing] to ensure that the ice was sufficiently frozen to allow for safe skating . . . thus creating an unsafe and dangerous condition," and in "allowing the public to utilize the [ESP] Ice Rink . . . during an unseasonably warm period causing ice to soften and creating a dangerous condition" (id. Exhibit A, ¶ 13; Exhibit C, ¶ 14 [b]). Barnes suffered a spiral fracture of her left tibia (see id., Exhibit C, ¶ 4).
Claimant argues that the evidence establishes that Barnes' left skate became stuck in the soft ice, which was the defect that caused her to fracture her left leg. Claimant has submitted evidence establishing that the temperatures the afternoon of Barnes' fall were unseasonably warm in the mid to upper 50s, that the ice rink in the hour before her fall was recorded as having been in "poor" condition and was "melty" (see Donovan Affirmation, Exhibit C), and that the ice rink had been known to have had soft ice when temperatures approached 60F. Cleary also acknowledged at her EBT that ice that is too soft can be dangerous for skaters because their skates can get stuck in the ice, as Barnes testified happened to her left skate immediately before she fell. Thus, in viewing all of the facts on this motion in the light most favorable to the non-moving party, and mindful of its limited role on summary judgment, the Court concludes that claimant has defeated defendant's prima facie showing by raising a material issue of fact as to whether soft ice caused Barnes' skate to get stuck, resulting in her injuries.
In further support of its motion for summary judgment, defendant contends that Barnes assumed the risks inherent in skating on an outdoor ice rink and that recovery is precluded under the primary assumption of risk doctrine because the wet nature of the ice skating rink was open and obvious and Barnes had fallen several times before the fall that injured her and thus understood the risks inherent in ice skating, even at her young age. In opposition, claimant argues that defendant enhanced the inherent risks in keeping the ice rink open during the unseasonably warm conditions and that Barnes was unable to appreciate the risk due to her young age and inexperience.
Here, the claim and the verified bill of particulars allege not that Barnes fell due to the wet condition of the rink, which was open and obvious and inherent in skating during warmer temperatures, but that she fell when her skate got stuck in soft ice resulting from defendant's negligence in failing to maintain the skating rink in a sufficiently frozen condition and in permitting the public to skate during unseasonably warm temperatures. "Although the risk of falling while ice skating is inherent in and arise[s] out of the nature of the sport generally . . . skating on a negligently maintained ice surface is not a risk that is inherent in the sport" (Wyzykowski v State of New York, 162 AD3d 1705, 1706 [4th Dept 2019][internal quotation marks omitted]). Thus, inasmuch as there is a question of fact as to whether claimant's skate got stuck in soft ice, and whether defendant's negligence in the maintenance and operation of the rink created a dangerous condition "over and above the usual dangers that are inherent in the sport" (Owen, 79 NY2d at 970), defendant has not demonstrated its entitlement to judgment as a matter of law on the issue of primary assumption of risk. "Contrary to defendant's contention, under the circumstances presented here, claimant's awareness of the poor ice conditions and her decision to continue skating . . . relate only to the issue of her comparative fault, if any" (Wyzykowski, 162 AD3d at 1706).
Accordingly, it is
ORDERED, that defendant's motion number M-93360 is DENIED.
June 13, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Notice of Motion, dated January 8, 2019; (2) Affirmation of Michael T. Krenrich, AAG, in Support of Motion for Summary Judgment, dated January 8, 209, with Exhibits A-E; (3) Affirmation of Ryan T. Donovan, Esq., dated February 13, 2019, with Exhibits A-H; (4) Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated February 13, 2019; (5) Reply Affirmation of Michael T. Krenrich, AAG, dated February 19, 2019.