Machowski v. Gallant

5 Citing cases

  1. Rios v. Town of Colonie

    256 A.D.2d 900 (N.Y. App. Div. 1998)   Cited 18 times

    Patently, although plaintiff assumed the risks that are generally inherent in and flow from his participation in this type of athletic competition ( see, Morgan v. State of New York, 90 N.Y.2d 471, 484; Rutnik v. Colonie Ctr. Ct. Club, 249 A.D.2d 873, 874, lv denied 92 N.Y.2d 808), he did not assume risks that were unique and resulted in a dangerous condition over and above the usual dangers inherent in the activity ( see, Morgan v.State of New York, supra, at 484; Turcotte v. Fell, 68 N.Y.2d 432, 439). We conclude that plaintiff's evidentiary submissions raised a genuine factual issue as to whether the "sharp, razor-like and serrated edge" of the culvert pipe posed an open and obvious risk to plaintiff or whether it constituted an "unassumed, concealed or unreasonably increased risk" ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658; see, Rutnik v. Colonie Ctr. Ct. Club, supra, at 874; Machowski v. Gallant, 234 A.D.2d 933), particularly where, as here, plaintiff's time to inspect the course was limited to a brief walk-through prior to the race. Mikoll, J. P., White, Yesawich Jr. and Peters, JJ., concur.

  2. Barone v. St. Joseph's Villa

    255 A.D.2d 973 (N.Y. App. Div. 1998)

    The release recites that plaintiff will hold defendant and its agents "harmless from all damages, losses and expenses" "arising out of [plaintiff's] use of the premises, operations, or facilities of [defendant]." Defendant's negligence is not mentioned. Thus, the release may not be construed to bar the claim that plaintiff was injured as a result of defendant's negligence ( see, Bennett v. Genesee Marina, 237 A.D.2d 908, 908-909; Machowski v. Gallant, 234 A.D.2d 933, 934).

  3. Rutnik v. Colonie Center Court Club Inc.

    249 A.D.2d 873 (N.Y. App. Div. 1998)   Cited 25 times
    Holding that a racquetball club was not negligent for not having a defibrillator on site for emergency use

    Defendants appeal. We reverse. It is well-settled law that voluntary participants in sporting events assume the risk of injuries normally associated with the sport ( see, Morgan v. State of New York, 90 N.Y.2d 471; Regan v. State of New York, 237 A.D.2d 851, lv denied 91 N.Y.2d 802; Conway v. Deer Park Union Free School Dist. No. 7, 234 A.D.2d 332, lv denied 90 N.Y.2d 809). A participant in a sporting event can be held to have consented to those injury-causing events which are known, apparent or reasonably foreseeable consequences of participation; a defendant generally has a duty to exercise reasonable care, to protect participants from unassumed, concealed or unreasonably increased risks ( see, Machowski v. Gallant, 234 A.D.2d 933). Moreover, relieving an owner or operator of a sporting facility from liability for the inherent risk of engaging in sports is "justified when the consenting participant is aware of the risk, has appreciation of the nature of the risks and voluntarily assumes the risk ( see, Morgan v. State of New York, supra). Furthermore, where the injured party had "previously participated in the sports activity on numerous occasions * * * it is not unreasonable to conclude that he or she assumed the obvious risk of injury in participating in that activity" ( Regan v. State of New York, supra, at 853; see, Capello v. Village of Suffern, 232 A.D.2d 599, 600; Marescot v. St. Augustine's R. C. School, 226 A.D.2d 507).

  4. Heminway v. State University of New York

    244 A.D.2d 979 (N.Y. App. Div. 1997)   Cited 12 times

    Supreme Court denied the motion and FSA appeals. FSA is not entitled to summary judgment dismissing the complaint on the ground of primary assumption of risk. As the court found, plaintiff raised an issue of fact whether he knew that there were branches on the side of the hill and whether the injury-causing event, a stick in the eye, was a known, apparent or reasonably foreseeable consequence of sledding (see, Machowski v. Gallant, 234 A.D.2d 933; Weller v. Colleges of the Senecas, 217 A.D.2d 280, 284). Under the circumstances, plaintiff's voluntary participation in sledding "is simply a factor relevant in the assessment of culpable conduct" (McKenney v. Dominick, 190 A.D.2d 1021), not a bar to plaintiff's claim (see, Weller v. Colleges of the Senecas, supra, at 284). We conclude, however, that FSA is entitled to summary judgment dismissing the complaint based on its immunity under General Obligations Law ยง 9-103.

  5. Rosania v. Carmona

    308 N.J. Super. 365 (App. Div. 1998)   Cited 12 times
    Applying reckless standard where karate student brought action against martial arts academy and instructor, seeking damages for retinal detachment suffered during karate proficiency test match with instructor

    Instructors and coaches owe a duty of care to persons in their charge not to increase the risks over and above those inherent in the sport. See Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 13-14, 834 P.2d 696, 707-08 (1992); Galardi v. Seahorse Riding Club, 16 Cal. App.4th 817, 20 Cal.Rptr.2d 270, 273 (1993); Machowski v. Gallant, 234 A.D.2d 933, 651 N.Y.S.2d 832 (1996). In Crawn, the Supreme Court took notice that sometimes, as between equally situated participants in competitive contact sports, "practices that technically violate safety rules become part of the accepted behavior of a sport."