Summary
granting defendants summary judgment where collision between plaintiff and other skater was "sudden and abrupt" and there was insufficient time to put the defendants on notice of a dangerous condition
Summary of this case from MILLER v. TRUMP ORG. LLCOpinion
June 27, 1991
Appeal from the Supreme Court, Bronx County (H. McGee, J.).
This personal injury action arises from an accident at a roller-skating rink operated by defendant-appellant Skate Key, Inc. Plaintiff-respondent Ivonne Lopez accompanied her daughter on a roller-skating trip sponsored by the Girl Scout Council of Greater New York. Approximately 200 girl scouts took part in the trip. While plaintiff was standing in the rink in a group of skaters waiting to exit from the rink, she was struck from behind by an out-of-control skater and fell breaking her wrist. The identity of the other skater is unknown.
The Motion Court denied the motions for summary judgment holding that factual issues are present, including "the manner in which the accident occurred, the supervision of the event as provided by the two defendants, and the alleged congestion caused by the close proximity of the rental office to the rink." The Motion Court also granted that part of the motions which sought to dismiss the derivative claim of plaintiff's husband.
While we agree with the Motion Court's dismissal of the derivative claim, we disagree as to the existence of triable issues of fact.
Participants in sporting events are deemed as a matter of law to assume the known risks associated with the particular sport. (Turcotte v Fell, 68 N.Y.2d 432; Wertheim v United States Tennis Assn., 150 A.D.2d 157, lv denied 74 N.Y.2d 613.) Collisions between roller skaters on a rink are unquestionably a common occurrence.
Plaintiff argues that because she was standing in a group waiting to exit, she should be treated more as a spectator than a participant, and that a factual question is presented whether the defendants took adequate precautions to protect spectators. We hold that on this record there is insufficient evidence of the existence of a dangerous condition for a sufficient period of time to put defendant on notice, and that the collision was a result of the "`sudden and abrupt'" action of another skater (Taynor v Skate Grove, 150 A.D.2d 362), a risk assumed by plaintiff as a matter of law. (See, Diderou v Pinecrest Dunes, 34 A.D.2d 672.)
Concur — Murphy, P.J., Carro, Wallach and Rubin, JJ.