Opinion
12-23-2016
Travis BUTCHELLO, Plaintiff–Respondent, v. Michael J. HERBERGER, Defendant–Appellant, et al., Defendants.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Michael J. Chmiel of Counsel), for Defendant–Appellant. Francis M. Letro, Buffalo (Ronald J. Wright of Counsel), for Plaintiff–Respondent.
Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Michael J. Chmiel of Counsel), for Defendant–Appellant.
Francis M. Letro, Buffalo (Ronald J. Wright of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, AND CURRAN, JJ.
MEMORANDUM:Plaintiff commenced this action to recover damages for injuries he sustained while playing in an intercollegiate junior varsity football game. In his complaint, plaintiff alleged, inter alia, negligent and/ or reckless conduct on the part of the college that fielded the opposing team, that team's coach, and Michael J. Herberger (defendant), the opposition player who allegedly injured plaintiff. Defendant moved for summary judgment dismissing the complaint against him on the ground that plaintiff assumed the risk of his injury as a matter of law. Supreme Court denied the motion, and we now reverse.
"As a general rule, participants properly 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" ( Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964, citing Maddox v. City of New York, 66 N.Y.2d 270, 277–278, 496 N.Y.S.2d 726, 487 N.E.2d 553 ). Whether a plaintiff should be deemed to have made an informed estimate of the risks involved in an activity before deciding to participate depends upon the openness and obviousness of the risk, the plaintiff's background, skill and experience, the plaintiff's own conduct under the circumstances, and the nature of the defendant's conduct (see Morgan v. State of New York, 90 N.Y.2d 471, 485–486, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). To establish a plaintiff's assumption of the risk, a defendant must show that the plaintiff was generally aware of the risk that befell him, but it is not necessary to demonstrate that the plaintiff foresaw the exact manner in which his injury occurred (see Maddox, 66 N.Y.2d at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553 ; Lamey v. Foley, 188 A.D.2d 157, 164, 594 N.Y.S.2d 490 ).
We agree with defendant that plaintiff's action is barred by the doctrine of primary assumption of the risk and that the court thus erred in denying the motion. Defendant sustained his burden on the motion of demonstrating that plaintiff, an experienced football player, voluntarily assumed the risk of the injury by participating in the game (see Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657–659, 543 N.Y.S.2d 29, 541 N.E.2d 29 ; Serrell v. Connetquot Cent. Sch. Dist. of Islip, 19 A.D.3d 683, 683–684, 798 N.Y.S.2d 493 ; see also Hagon v. Northport–East Northport Union Free Sch. Dist. No. 4, 273 A.D.2d 441, 441, 711 N.Y.S.2d 748 ). In opposition to the motion, plaintiff failed to raise a triable issue of fact concerning whether he was subjected to a concealed or unseasonably increased risk (see Serrell, 19 A.D.3d at 683–684, 798 N.Y.S.2d 493 ; Hagon, 273 A.D.2d at 441–442, 711 N.Y.S.2d 748 ), or one that was otherwise not inherent in the sport (see Cole v. New York Racing Assn., 24 A.D.2d 993, 994, 266 N.Y.S.2d 267, affd. 17 N.Y.2d 761, 270 N.Y.S.2d 421, 217 N.E.2d 144 ; see generally Benitez, 73 N.Y.2d at 659, 543 N.Y.S.2d 29, 541 N.E.2d 29 ). Moreover, plaintiff failed to raise a triable issue of fact on his claim that defendant's conduct was a "flagrant infraction[ of the rules of the sport] unrelated to the normal method of playing the game and ... without any competitive purpose" (Turcotte, 68 N.Y.2d at 441, 510 N.Y.S.2d 49, 502 N.E.2d 964 ; see Barton v. Hapeman, 251 A.D.2d 1052, 1052, 674 N.Y.S.2d 188 ; cf. Kramer v. Arbore, 309 A.D.2d 1208, 1209, 765 N.Y.S.2d 118 ; Keicher v. Town of Hamburg, 291 A.D.2d 920, 920–921, 737 N.Y.S.2d 740 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed against defendant Michael J. Herberger.