Opinion
1176 CA 18–00176
11-16-2018
Jacob STILLMAN, Plaintiff–Respondent, v. MOBILE MOUNTAIN, INC., Defendant–Appellant, et al., Defendants.
OSBORN, REED & BURKE, LLP, ROCHESTER (MICHAEL REDDY OF COUNSEL), FOR DEFENDANT–APPELLANT. CONNORS LLP, BUFFALO (LAWLOR F. QUINLAN, III, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
OSBORN, REED & BURKE, LLP, ROCHESTER (MICHAEL REDDY OF COUNSEL), FOR DEFENDANT–APPELLANT.
CONNORS LLP, BUFFALO (LAWLOR F. QUINLAN, III, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CURRAN, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that he sustained when he fell from an artificial rock climbing wall at a local festival. Mobile Mountain, Inc. (defendant) appeals from a judgment that, upon a jury verdict, apportioned defendant 80% of the damages to be awarded to plaintiff at a subsequent damages trial. Inasmuch as defendant requested only a premises liability charge (see PJI 2:90 ), defendant failed to preserve for our review its contention that Supreme Court erred in failing to instruct the jury on the issue of actual or constructive notice in connection with plaintiff's theory of negligent inspection (see Fitzpatrick & Weller, Inc. v Miller, 21 A.D.3d 1374, 1375, 802 N.Y.S.2d 292 [4th Dept. 2005] ). In any event, that contention is without merit (see generally Pantoja v. Lindsay Park Hous. Corp., 277 A.D.2d 365, 366, 716 N.Y.S.2d 335 [2d Dept. 2000] ; Naples v. City of New York, 34 A.D.2d 577, 578, 309 N.Y.S.2d 663 [2d Dept. 1970] ).
The court properly denied defendant's request to instruct the jury on the doctrine of assumption of the risk. Contrary to defendant's contention, the failure to inspect or the negligent inspection of the artificial rock climbing wall's safety equipment that was used by plaintiff unreasonably enhanced the risks that plaintiff assumed in climbing that festival amusement (see generally Custodi v. Town of Amherst, 20 N.Y.3d 83, 87–88, 957 N.Y.S.2d 268, 980 N.E.2d 933 [2012] ; Stillman v. Mobile Mtn., Inc., 162 A.D.3d 1510, 1511, 79 N.Y.S.3d 417 [4th Dept. 2018] ). Finally, we reject defendant's contention that the court erred in denying its motion for a directed verdict inasmuch as there was a rational process by which the jury could have based a finding in favor of plaintiff upon the evidence presented (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ; Williamson v. Hodson, 147 A.D.3d 1488, 1488–1489, 47 N.Y.S.3d 200 [4th Dept. 2017], lv denied 29 N.Y.3d 913, 2017 WL 2683465 [2017] ).