Opinion
2013-05-1
Brianna STACH, etc., et al., appellants, v. WARWICK VALLEY CENTRAL SCHOOL DISTRICT, et al., respondents.
Schonberg Law Offices of the Hudson Valley, P.C., Central Valley, N.Y. (Susan R. Nudelman and Bruce A. Schonberg of counsel), for appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for respondents.
Schonberg Law Offices of the Hudson Valley, P.C., Central Valley, N.Y. (Susan R. Nudelman and Bruce A. Schonberg of counsel), for appellants. Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (Bartlett, J.), dated November 16, 2011, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On January 21, 2009, the infant plaintiff, an experienced high school cheerleader, allegedly was injured when she fell while performing the “Pyramid” stunt on a bare lobby floor during cheerleading practice. The plaintiffs commenced this action, alleging, inter alia, that the defendants were negligent in failing to supervise the cheerleaders properly and in failing to provide protective floor mats.
“Under the doctrine of primary assumption of risk, a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions, and risks which are inherent in the activity” ( O'Connor v. Hewlett–Woodmere Union Free Sch. Dist., 103 A.D.3d 862, 862–863, 959 N.Y.S.2d 750;see Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” ( O'Connor v. Hewlett–Woodmere Union Free Sch. Dist., 103 A.D.3d at 863, 959 N.Y.S.2d 750;see Morgan v. State of New York, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964). Even where the risk of injury is assumed, however, a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from “unassumed, concealed, or unreasonably increased risks” ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 654, 543 N.Y.S.2d 29, 541 N.E.2d 29).
Here, the defendants established, prima facie, that the infant plaintiff voluntarily engaged in the activity of cheerleading, including the performance of stunts, and that, as an experienced high school cheerleader, she knew the risks inherent in the activity, including those associated with practicing on a bare lobby floor ( see Kristina D. v. Nesaquake Middle Sch., 98 A.D.3d 600, 600–601, 949 N.Y.S.2d 745;Testa v. East Meadow Union Free School Dist., 92 A.D.3d 940, 941, 938 N.Y.S.2d 903;Lomonico v. Massapequa Pub. Schools, 84 A.D.3d 1033, 1034, 923 N.Y.S.2d 631;DiGiose v. Bellmore–Merrick Cent. High School Dist., 50 A.D.3d 623, 624, 855 N.Y.S.2d 199;cf. Traficenti v. Moore Catholic High School, 282 A.D.2d 216, 724 N.Y.S.2d 24;Fisher v. Syosset Cent. School Dist., 264 A.D.2d 438, 439, 694 N.Y.S.2d 691). The defendants also made a prima facie showing that they did not fail to supervise the cheerleading practice ( see Lomonico v. Massapequa Pub. Schools, 84 A.D.3d at 1034, 923 N.Y.S.2d 631).
In opposition, the plaintiffs failed to raise a triable issue of fact. The infant plaintiff's voluntary participation in practice on the bare lobby floor on the date of the accident did not implicate the doctrine of inherent compulsion ( see Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 658, 543 N.Y.S.2d 29, 541 N.E.2d 29;Musante v. Oceanside Union Free School Dist., 63 A.D.3d 806, 807, 881 N.Y.S.2d 446).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.