Opinion
2017–10546 Index No. 30058/16
10-14-2020
Emily MCKAY, et al., appellants, v. ROCKLAND GAELIC ATHLETIC ASSOCIATION, INC., et al., respondents.
Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (John S. Rand of counsel), for appellants. Craig P. Curcio, Middletown, N.Y. (Kirby J. Smith of counsel), for respondent Rockland Gaelic Athletic Association, Inc. Thomas K. Moore (Andrea G. Sawyers, Melville, N.Y. [David R. Holland ], of counsel), for respondent Noel C. Cronin.
Clark, Gagliardi & Miller, P.C., White Plains, N.Y. (John S. Rand of counsel), for appellants.
Craig P. Curcio, Middletown, N.Y. (Kirby J. Smith of counsel), for respondent Rockland Gaelic Athletic Association, Inc.
Thomas K. Moore (Andrea G. Sawyers, Melville, N.Y. [David R. Holland ], of counsel), for respondent Noel C. Cronin.
RUTH C. BALKIN, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Thomas E. Walsh II, J.), dated September 18, 2017. The order granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs.
The plaintiff Emily McKay (hereinafter the plaintiff) allegedly was injured on the grounds of the defendant Rockland Gaelic Athletic Association, Inc. (hereinafter GAA), by an errant sheaf tossed by the defendant Noel C. Cronin during a sheaf-tossing competition. In sheaf tossing, the participant sticks a pitchfork into a sheaf, a burlap bag containing hay or grass, and tries to throw it over a crossbar, which is raised in successive rounds.
The plaintiff and her husband, suing derivatively, commenced this action against the defendants, inter alia, to recover damages for personal injuries. After discovery, the defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the defendants' separate motions, and the plaintiffs appeal.
We agree with the Supreme Court's determination to grant the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them. "The doctrine of primary assumption of the risk applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it" ( M.F. v. Jericho Union Free Sch. Dist., 172 A.D.3d 1056, 1058, 100 N.Y.S.3d 337 ; see Spiteri v. Bisson, 134 A.D.3d 799, 801, 20 N.Y.S.3d 429 ; Cocco v. City of New York, 114 A.D.3d 617, 617, 980 N.Y.S.2d 766, 980 N.Y.S.2d 766 ; Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 248, 850 N.Y.S.2d 38, affd 10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 ; Koenig v. Town of Huntington, 10 A.D.3d 632, 633, 782 N.Y.S.2d 92 ; Sutton v. Eastern N.Y. Youth Soccer Assn., Inc., 8 A.D.3d 855, 857, 779 N.Y.S.2d 149 ). "[T]he spectator at a sporting event, no less than the participant, ‘accepts the dangers that inhere in it so far as they are obvious and necessary’ " ( Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 329, 441 N.Y.S.2d 644, 424 N.E.2d 531, quoting Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482, 166 N.E. 173 ).
Here, the defendants established, prima facie, that the plaintiff assumed the risk of being struck by a sheaf, as the risk of being hit by a thrown sheaf is obvious and inherent in a sheaf-throwing competition (see Spiteri v. Bisson, 134 A.D.3d at 801, 20 N.Y.S.3d 429 ; Savage v. Brown, 128 A.D.3d 1343, 1344, 7 N.Y.S.3d 764 ; Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d at 248, 850 N.Y.S.2d 38 ; Kreil v. County of Niagara, 8 A.D.3d 1001, 1002, 778 N.Y.S.2d 601 ). The GAA further established, prima facie, that it did not unreasonably increase the risk of being struck by a sheaf (see Spiteri v. Bisson, 134 A.D.3d at 801, 20 N.Y.S.3d 429 ), and Cronin established, prima facie, that his conduct was not intentional or reckless (see Rueckert v. Cohen, 116 A.D.3d 1026, 1027, 983 N.Y.S.2d 894 ; Kreil v. County of Niagara, 8 A.D.3d at 1002, 778 N.Y.S.2d 601 ). In opposition, the plaintiffs failed to raise a triable issue of fact.
BALKIN, J.P., COHEN, HINDS–RADIX and CONNOLLY, JJ., concur.