Opinion
08-008.
Decided January 24, 2011.
By: Louis J. Vivani, Esq., Attorneys for Plaintiff, Syracuse, New York.
MITCHELL, GORIS STOKES, LLC, By: Mark D. Goris, Esq., Attorneys for Defendants/Third-Party Plaintiffs, Cazenovia, New York.
HINMAN, HOWARD KATTELL, LLP, By: James S. Gleason, Esq., Attorney for Third-Party Defendants, Binghamton, New York.
On August 4, 2007, plaintiff was an adult passenger in an all-terrain vehicle (ATV) owned by defendant Cold Brook Farms, Inc. and operated by his 15 year old stepsister, Amanda Distin, on property owned by defendants Gerald Contento and Theresa Contento. Plaintiff commenced this action against Contentos and Cold Brook Farm, Inc. to recover for injuries he sustained when the ATV overturned. Contentos thereafter commenced a third-party action against Amanda and her parents, Les Distin and Anne Distin. Distins move for summary judgment dismissing the third-party complaint and Contentos and Cold Brook Farm, Inc. move for summary judgment dismissing the complaint.
The incident occurred at a family reunion that was being held at a pavilion located at the Contento property — a rural property of over 140 acres on which Cold Brook Farm, Inc. operated a hunting business. Two ATVs present at the reunion were being used by several family members. At approximately 4:00 p.m., Amanda got into the driver's seat of the Yamaha Rhino ATV, which had side-by-side seating with lap and shoulder belts for two riders, roll-bar protection, a sign posted on the dash located in front of the seating area warning riders to wear the seat belts, and a small cargo area behind the seating area ( see Affidavit [unsworn] of James S. Gleason, Esq. [Gleason Affidavit], Exhibit D [Transcript of Examinations Before Trial of Joseph Shay and Gerald A. Contento; herein Shay-Contento EBT Transcript], p. 221, 238 — 239, Exhibit F [pictures of the ATV]). After Amanda fastened her seat belt — plaintiff did not fasten his — she drove the ATV along a gravel drive toward a pond located on the property at a speed of approximately 5 — 10 miles per hour. When she turned the vehicle from the gravel drive onto an adjacent grassy area, the vehicle became unstable. She continued driving at a slow speed in the grassy area, which she testified contained irregularities, or potholes. When she started to turn right in an attempt to reenter the gravel drive, the ATV rolled over, injuring plaintiff — Amanda was not injured (Shay-Contento EBT Transcript, pp. 42 — 51; Gleason Affidavit, Exhibit D [Transcript of Examination Before Trial of Distins], pp. 34 — 55).
Each of the movants seeks summary judgment, on the basis, inter alia, that plaintiff's assumption of the risk of voluntarily riding in the ATV bars recovery against them. The doctrine of primary assumption of the risk — which has survived adoption by New York State of the doctrine of comparative fault — provides that a voluntary participant in a sport or recreational activity assumes the risks inherent in the activity ( Ananad v Kapoor, ___ NY3d ___, 2010 NY Slip Op 09380; Trupia v Lake George Cent. School Dist. , 14 NY3d 392 ). The doctrine of the assumption of the risk applies to recreational use of ATV vehicles ( see Morales v Coram Materials Corp. , 64 AD3d 756, lv denied 14 NY3d 708); therefore, by choosing to ride in the ATV operated by Amanda, plaintiff assumed "those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation" ( Morgan v State of New York, 90 NY2d 471, 484, reargument denied 90 NY2d 936). While plaintiff argues that he did not comprehend the risk of harm that could occur from choosing to ride in the ATV with Amanda, it is not necessary that a participant have foreseen the exact manner in which he was injured; rather, the determinative factor is whether the injury-causing condition is a risk that is actually inherent in the activity ( id.).
Here, the accident occurred while the ATV was being operated on the irregular terrain of rural property. A reasonable adult must be expected to know that there is a risk of vehicle instability — including the potential for a rollover — when operating an ATV under such conditions ( see Morgan, 90 NY2d at 486 — 488; Morales, 64 AD3d at 758 — 759; Schiavone v Brinewood Rod Gun Club, 283 AD2d 234). In opposition to movants' showing of prima facie entitlement to summary judgment, plaintiff failed to submit any evidence sufficient to raise a triable issue of fact as to whether the condition of the property, or Amanda's operation of the ATV at a speed of 5 — 10 miles per hour, were so unique as to create a dangerous condition over and above the usual dangers inherent in the sport of recreational ATV riding ( Morales, 64 AD3d at 759; see also Anand; cf. Pantalone v Talcott , 52 AD3d 1148 [summary judgment based on application of the doctrine of assumption of the risk was properly denied where the inexperienced 15 year old defendant operated a snowmobile at a high rate of speed — possibly 50 miles per hour — while her vision was impaired by sun glaring off snow and ice]; Clauss v Bush, ___ AD3d ___, 2010 NY Slip Op 09312 [summary judgment was properly denied in light of evidence — including an expert opinion that defendant was reckless — showing that defendant skied beyond his ability and lost control of his speed and direction]). Accordingly, movants' motions must be, and hereby are, granted. The third-party complaint is dismissed against Distins, with prejudice, and the complaint is dismissed against Contentos and Cold Brook Farm, Inc., with prejudice. In light of the determination that plaintiff's recovery is barred by the doctrine of primary assumption of the risk, movants' remaining arguments have not been considered.
This decision constitutes the order of the court. The transmittal of copies of this decision and order by the court shall not constitute notice of entry.
The following documents were filed with the Clerk of the County of Cortland:
-Notice of Motion for Summary Judgment for Amanda Distin, Les Distin and Anne Distin dated September 15, 2009; Affidavit of Service by Federal Express by Lida Kuzel, sworn on December 14, 2009; Affidavit of James S. Gleason in Support of Summary Judgment [not sworn] with attached Exhibits A-G;
-Notice of Cross-Motion from Mitchell, Goris Stokes dated November 16, 2009; Affidavit of Service of Luci M. Brooks sworn to November 16, 2009; Affidavit of Mark D. Goris sworn to November 16, 2009 with attached Exhibits A-M;
-Affidavit of Timothy N. McMahon sworn to November 24, 2009;
-Original Decision and Order dated January 24, 2011.