Opinion
12-23-2015
Noah SAFON, etc., respondent-appellant, v. BELLMORE–MERRICK CENTRAL HIGH SCHOOL DISTRICT, appellant-respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser of counsel), for appellant-respondent. Morrison & Wagner, LLP, New York, N.Y. (Eric H. Morrison of counsel), for respondent-appellant.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Christine Gasser of counsel), for appellant-respondent.
Morrison & Wagner, LLP, New York, N.Y. (Eric H. Morrison of counsel), for respondent-appellant.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), dated January 9, 2015, as denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment dismissing the second and third affirmative defenses.
ORDERED that the order is reversed insofar as appealed from, on the law, and the defendant's motion for summary judgment dismissing the complaint is granted; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant. On February 26, 2013, the infant plaintiff (hereinafter the plaintiff), a junior at John F. Kennedy High School in Bellmore, and a member of the varsity lacrosse team, allegedly was injured in an after-school practice session. Specifically, he alleges that as he was running toward the goal, his left foot came into contact with the base of the goal, causing him to twist his ankle and fall face down on the ground. According to the plaintiff, a net should have been attached to the goal, but, at the time he fell, the net was not covering the entire base of the goal. The plaintiff, by his mother, commenced this action against the defendant school district. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff assumed the risks inherent in the sport. The plaintiff cross-moved for summary judgment dismissing the second and third affirmative defenses, which sounded in comparative negligence and primary assumption of risk. The Supreme Court denied the motion and the cross motion.
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" (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). "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" (Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356, 948 N.Y.S.2d 568, 971 N.E.2d 849 ; see Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 541 N.E.2d 29 ; Weinberger v. Solomon Schechter Sch. of Westchester, 102 A.D.3d 675, 678, 961 N.Y.S.2d 178 ). "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" (Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ; see Joseph v. New York Racing Assn., 28 A.D.3d 105, 809 N.Y.S.2d 526 ). This includes the construction of the playing surface and any open and obvious condition on it (see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 826 N.Y.S.2d 598, 860 N.E.2d 60 ; Baccari v. KCOR, Inc., 109 A.D.3d 856, 857, 971 N.Y.S.2d 458 ; Mattas v. Town of Hempstead, 106 A.D.3d 884, 885, 965 N.Y.S.2d 554 ; Cevetillo v. Town of Mount Pleasant, 262 A.D.2d 517, 692 N.Y.S.2d 426 ).
The Supreme Court properly denied the plaintiff's cross motion for summary judgment dismissing the second and third affirmative defenses, since he failed to establish, prima facie, that neither the doctrine of comparative negligence nor the doctrine of primary assumption of risk applied to this case (see CPLR 1411 ; Custodi v. Town of Amherst, 20 N.Y.3d 83, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Morgan v. State of New York, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). However, the 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 (see Krebs v. Town of Wallkill, 84 A.D.3d 742, 922 N.Y.S.2d 516 ; Retian v. City of New York, 259 A.D.2d 684, 686 N.Y.S.2d 857 ). In opposition, the plaintiff failed to raise a triable issue of fact (see generally Bendig v. Bethpage Union Free School Dist., 74 A.D.3d 1263 1265, 904 N.Y.S.2d 731 ; Musante v. Oceanside Union Free School Dist., 63 A.D.3d 806, 807, 881 N.Y.S.2d 446 ; Ribaudo v. La Salle Inst., 45 A.D.3d 556, 846 N.Y.S.2d 209 ).