Opinion
2012-06-8
Dawn M. CLOSE, Plaintiff–Appellant, v. DARIEN LAKE THEME PARK AND CAMPING RESORT, INC., Defendant–Respondent.
Bennett, Difilippo & Kurtzhalts, LLP, East Aurora (Maura C. Seibold of Counsel), for Plaintiff–Appellant. Damon Morey LLP, Buffalo (Amy Archer Flaherty of Counsel), for Defendant–Respondent.
Bennett, Difilippo & Kurtzhalts, LLP, East Aurora (Maura C. Seibold of Counsel), for Plaintiff–Appellant. Damon Morey LLP, Buffalo (Amy Archer Flaherty of Counsel), for Defendant–Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and MARTOCHE, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries that she sustained on a water ride in an amusement park owned by defendant. Contrary to plaintiff's contention, Supreme Court properly granted the motion of defendant for summary judgment dismissing the complaint. “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” ( Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;see Anand v. Kapoor, 15 N.Y.3d 946, 947–948, 917 N.Y.S.2d 86, 942 N.E.2d 295; Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;Maddox v. City of New York, 66 N.Y.2d 270, 277–278, 496 N.Y.S.2d 726, 487 N.E.2d 553). Awareness of the risk is “ ‘to be assessed against the background of the skill and experience of the particular plaintiff’ ” ( Morgan, 90 N.Y.2d at 486, 662 N.Y.S.2d 421, 685 N.E.2d 202, quoting Maddox, 66 N.Y.2d at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553). Here, “defendant sustained its burden of proving its prima facie entitlement to judgment as a matter of law ... by presenting evidence that the plaintiff understood and voluntarily assumed the risks inherent in the activity at issue” ( Leslie v. Splish Splash at Adventureland, Inc., 1 A.D.3d 320, 321, 766 N.Y.S.2d 599). Contrary to plaintiff's contention, she failed to raise a triable issue of fact whether defendant engaged in reckless or intentional conduct or whether there existed a dangerous condition that concealed or unreasonably increased the risks of the ride ( see Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d 957, 959, 862 N.Y.S.2d 626;see also Loewenthal v. Catskill Funland, 237 A.D.2d 262, 263–264, 654 N.Y.S.2d 169).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.