Opinion
2012-03-16
William D. AUSTIN, Plaintiff–Appellant, v. BUFFALO BILLS, INC., Defendant–Respondent.
Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of Counsel), for Plaintiff–Appellant. Walsh, Roberts & Grace, Buffalo (Keith N. Bond of Counsel), for Defendant–Respondent.
Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of Counsel), for Plaintiff–Appellant. Walsh, Roberts & Grace, Buffalo (Keith N. Bond of Counsel), for Defendant–Respondent.
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Supreme Court properly granted defendant's motion seeking summary judgment dismissing the complaint. Plaintiff was injured while working as a security guard during a home game of the Buffalo Bills football team. Plaintiff was positioned on the field near the end zone when two players left the field of play and collided with him. The court properly determined that plaintiff assumed the risk of his injury. Where, as here, the plaintiff fully comprehended the risks or the risks are “ ‘perfectly obvious, [then the] plaintiff has consented to them and [the] defendant has performed its duty’ ” ( Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202, quoting Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; see Bereswill v. National Basketball Assn., 279 A.D.2d 292, 293, 719 N.Y.S.2d 231; Cannavale v. City of New York, 257 A.D.2d 462, 462–463, 683 N.Y.S.2d 528). Plaintiff's contention that he was under an inherent compulsion to assume the risk is raised for the first time on appeal and thus is not properly before us ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745). In any event, that contention is without merit ( see generally Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658–659, 543 N.Y.S.2d 29, 541 N.E.2d 29).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.