Opinion
No. 111450/2008.
2010-08-23
Debra MILLER, Plaintiff, v. TRUMP ORGANIZATION LLC, The Trump Organization, Inc., and Wollman Rink Operations LLC., Defendants.
Glenn H. Shore, Esq., New York, for plaintiff. Robert M. Michell, Lester Schwab Katz & Dwyer, LLP, New York, for defendants.
Glenn H. Shore, Esq., New York, for plaintiff. Robert M. Michell, Lester Schwab Katz & Dwyer, LLP, New York, for defendants.
SALIANN SCARPULLA, J.
In this personal injury action, defendants Trump Organization LLC, The Trump Organization, Inc., and Wollman Rink Operations LLC (collectively, the “Trump Organization”) move pursuant to CPLR 3212 for summary judgment dismissing the complaint.
Factual Background
This action stems from a collision between plaintiff Debra Miller (“Miller”) and Mark Gamero (“Gamero”), while both were ice-skating at Wollman Skating Rink (the “Wollman Rink”) in Central Park, New York, NY. The Trump Organization is the operator and manager of Wollman Rink.
On the afternoon of Sunday, April 6, 2008, Miller went to Wollman Rink to ice-skate. At her deposition Miller stated that at the time of the incident, she had been skating for approximately forty-five minutes. While remaining near the center of the rink, Miller stopped for a minute or two to catch her breath. During this break, Gamero struck Miller from behind. In his affidavit, submitted by Miller, Gamero states that he was skating backwards at the time he hit Miller. Miller avers that Gamero struck her at a high velocity; the incident report filed by the manager of Wollman Rink states that the accident occurred when Gamero “slammed into [Miller].” Miller testified that the collision caused her to fall to the ice, with resultant injuries to her left wrist and left shoulder, among other physical and mental injuries.
Miller commenced this action in or about August 2008, seeking to recover damages for the injuries she allegedly suffered as a result of the April 6, 2008 collision at Wollman Rink. Miller alleges that the Trump Organization was negligent, arguing that as operator and manager of Wollman Rink, it had a duty to provide a safe skating environment through proper supervision of skaters, as well as proper hiring and supervision of Wollman Rink personnel. Miller argues that the Trump Organization breached these duties by failing to adequately supervise and restrain Gamero's dangerous skating, and that this breach proximately caused Miller's injuries.
The Trump Organization now moves for summary judgment pursuant to CPLR 3212. The Trump Organization argues that, as an individual with ice-skating experience who was aware of the potential for collisions with other skaters, Miller voluntarily assumed the risk of injury when she skated at Wollman Rink. The Trump Organization maintains that any injuries she suffered were the result of a risk inherent to ice-skating, which it could not have prevented. At an examination before trial, Dale Klied (“Klied”), the general manager of Wollman Rink, testified to the level of supervision provided at the rink and discussed Wollman Rink's policy regarding disciplinary actions toward individuals who engage in dangerous activity such as skating backwards and speeding. The Trump Organization maintains that Klied's testimony establishes that the Trump Organization took reasonable care in supervising the activity at Wollman Rink on April 6, 2008. The Trump Organization therefore argues that it cannot be held liable for Miller's injuries as a matter of law.
In opposition, Miller argues that summary judgment is unwarranted because the Trump Organization was aware that reckless skating by certain individuals posed a heightened risk of injury to other patrons at Wollman Rink. Miller testified that she saw Gamero skating fast while she was at Wollman Rink on April 6, 2008. In addition, Miller points to Gamero's affidavit, in which Gamero states that he was disciplined on numerous occasions by the Wollman Rink staff for skating recklessly, including an ejection for speed skating during the 2007/2008 skating season. Miller maintains that there is a triable issue of fact as to whether the Trump Organization took reasonable care in supervising Gamero's reckless skating and whether the Trump Organization thereby can be found negligent for having failed to prevent the collision that occurred between Miller and Gamero.
Miller also submits an affidavit from Jai Mitchell (“Mitchell”), a friend of Miller who went to the Wollman Rink after Miller's collision. Mitchell avers that he had a conversation with a rink attendant who said that Gamero was a known “Rink Rat”—an individual who skated at the Wollman Rink frequently—and that Gamero had been ejected from the Wollman Rink on the previous day. Miller argues that this constitutes admissible evidence under the party admission exception to the hearsay rule. Because this Court does not find Mitchell's affidavit to be necessary for the disposition of this motion and because the question of its admissibility was not sufficiently briefed by the parties, Mitchell's affidavit was not considered in deciding this motion.
Discussion
A court may grant summary judgment under CPLR 3212 only if it finds that a case is devoid of issues of material fact. CPLR 3212(b); see also Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). On a summary judgment motion, “all of the evidence must be viewed in the light most favorable to the opponent of the motion.” People v. Grasso, 50 AD3d 535, 544 (1st Dep't 2008). Viewed in a light most favorable to Miller, she has raised a triable issue as to whether the Trump Organization was negligent in failing to prevent the collision between Miller and Gamero.
In general, an ice-skating rink is not liable for rink collisions which occurred abruptly and could not have been foreseen by the defendants. See Engstrom v. City of New York, 270 A.D.2d 35, 36 (1st Dep't 2000) (granting summary judgment to defendants where collision between plaintiff and other skaters was a “sudden precipitous event and could not have been anticipated or avoided by the most intensive supervision” (internal quotations omitted)); Lopez v. Skate Key, Inc., 174 A.D.2d 534, 534 (1st Dep't 1991) (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).
In this case, Miller alleges that the Trump Organization was aware of the increased risk of injury from the previous, documented reckless activity of Gamero. Miller has submitted Gamero's own affidavit, in which he admits that he often engaged in dangerous skating activity at Wollman Rink, which resulted in frequent disciplinary action by the Trump Organization toward Gamero. Moreover, Miller states that she saw Gamero speed skating prior to the collision on April 6, 2008. Therefore, there is a triable issue as to whether “[Miller]'s injury was caused not by a sudden unanticipated collision common to this sport but rather by the reckless actions of another skater that might have been foreseen and prevented by adequate supervision.” Williams v. Skate Key, Inc., 240 A.D.2d 277, 277 (1st Dep't 1997).
Further, Miller submits sufficient proof to show that her alleged injuries did not arise from the type of inherent risks that are assumed by individuals participating in ice-skating. Although “[a] participant in a recreational event such as ice skating is presumed to have assumed the risk of potentially injury-causing conditions which are known, apparent or reasonably foreseeable,” Saravia v. Makkos of Brooklyn, 264 A.D.2d 576, 576 (1st Dep't 1999), “participants will not be deemed to have assumed the risks of reckless or intentional conduct.” Morgan v. State, 90 N.Y.2d 471, 484 (1997) (internal citations omitted). Here, Miller's allegation that her injuries were caused by the Trump Organization's failure to adequately supervise and control Gamero's reckless skating is supported by Gamero's affidavit, in which he admits to skating backwards when he struck Miller. Klied detailed in his deposition testimony that disciplinary action is taken against individuals who skate fast or skate backwards; he acknowledged that a skater could potentially be denied entry to Wollman Rink for an entire season for repeatedly engaging in such dangerous activity. Miller has therefore submitted sufficient evidence from which a jury could find that the Trump Organization breached its “duty to control the reckless conduct of skaters on [its] premises.” Nunez v. Recreation Rooms & Settlement, 229 A.D.2d 359, 360 (1st Dep't 1996).
In accordance with the foregoing, it is
ORDERED that the motion by defendants Trump Organization LLC, The Trump Organization, Inc., and Wollman Rink Operations LLC for summary judgment dismissing the complaint of plaintiff Debra Miller is denied.
This constitutes the decision and order of the Court.