Summary
In Ticha v. OTB Jeans (39 A.D.3d 310 [1st Dep't., 2007]), the court dismissed the complaint because the plaintiff could not prove that her employer directed her to stand in the location where she was ultimately injured while filming a dirt bike competition.
Summary of this case from Meddanis v. City of N.Y.Opinion
No. 750.
April 12, 2007.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered May 24, 2006, which, in an action for personal injuries by a videographer against sponsors of a dirt bike competition who had engaged plaintiffs employer to film the competition, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Sandback, Birnbaum Michelen, Mineola (Oscar Michelen of counsel), for appellant.
Molod Spitz DeSantis, P.C., New York (Marcy Sonneborn of counsel), for respondents.
Before: Mazzarelli, J.P., Andrias, Friedman, McGuire and Malone, JJ.
Plaintiff asserts that defendants' president asked her to film a rider who was standing on the ramp on the other side of the field because he was wearing defendants' apparel, and, while doing so, she was hit by another rider who lost control of his bike. Plaintiff argues that she did not assume the risk of filming the far-off rider because he could only be filmed from the spot where she was standing and she was acting under the "inherent compulsion" of a specific instruction from her superior. The argument is contradicted by plaintiffs deposition testimony that she could not recall whether defendants' president told her to film the rider from the particular spot where she stood or whether she decided herself to continue standing there ( see Maddox v City of New York, 66 NY2d 270, 279 [no basis to infer plaintiff acted under compulsion of unspoken order]). Even if plaintiff did recall an express order, there is no evidence that she complained to defendants' president about any danger or that he directed her to continue standing where she was despite dangers known by or communicated to him ( see Benitez v New York City Bd. of Educ, 73 NY2d 650, 659; Bereswill v National Basketball Assn., 279 AD2d 292).