Summary
holding that plaintiff assumed the risk of injury when he swung on, and subsequently fell off, an exercise apparatus constructed over a concrete floor
Summary of this case from Pryce v. Town Sports Int'l, LLCOpinion
173
Decided December 17, 2002.
APPEAL, by permission of the Appellate Divison of the Supreme Court in the First Judicial Department, from an order of that Court, entered June 11, 2001, which (1) reversed, on the law, an order of the Supreme Court (Stanley Green, J.) entered in Bronx County, granting a motion by defendants for summary judgment dismissing the complaint, (2) denied defendants' motion, and (3) reinstated the complaint. The following question was certified by the Appellate Division: "Was the order of this Court, which was the order of the Supreme Court, properly made?"
Plaintiff inmate was injured when he fell from a set of parallel exercise bars in the correctional facility's recreation yard. Supreme Court granted defendants' motion for summary judgment concluding that any defects were open and obvious, and that plaintiff had assumed the risk of falling when he engaged in the exercise activity.
The Appellate Division reversed, concluding that questions of fact existed concerning whether plaintiff assumed the risk of his injury.
Michael A. Cardozo, Corporation Counsel, New York City (Cheryl Payer of counsel), for appellants.
Oshman, Helfenstein, Bernstein, Mirisola Schwartz, LLP, New York City (David L. Kremen of counsel), for respondent.
Chief Judge Kaye and Judges Smith, Levine, Ciparick, Wesley, Rosenblatt and Graffeo concur.
On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, defendants' motion for summary judgment granted and complaint dismissed. Certified question answered in the negative. Plaintiff assumed the risk of injury when he swung on, and subsequently fell off, an exercise apparatus constructed over a concrete floor (see,Turcotte v. Fell, 68 N.Y.2d 432, 438-439; see also, Morgan v. State of New York, 90 N.Y.2d 471, 488).