Summary
stating that "a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks"
Summary of this case from Dahl v. MandrusiakOpinion
No. 222.
Argued November 16, 2010.
decided December 21, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Second Judicial Department, from an order of that Court, entered April 21, 2009. The Appellate Division affirmed so much of an order of the Supreme Court, Nassau County (Joseph A. DeMaro, J.; op 2007 NY Slip Op 34463 [U]), as had granted a motion by defendant for summary judgment dismissing the complaint. The following question was certified by the Appellate Division: "Was the decision and order of this court dated April 21, 2009, properly made?"
Anand v Kapoor, 61 AD3d 787, affirmed.
Steven Cohn, P.C., Carle Place ( Steven Cohn and Susan E. Dantzig of counsel), for appellants.
Ryan, Perrone Hartlein, P.C., Mineola ( William D. Hartlein and William T. Ryan of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground that it is unnecessary.
While playing golf with two friends at a nine-hole course in Suffolk County, defendant Anoop Kapoor "shanked" a shot, striking plaintiff Azad Anand in the left eye, with the errant ball. The accident occurred during play on the first hole. Kapoor's second shot landed in the "rough." Without waiting for Kapoor to retrieve his ball, Anand went to look for his on the fairway. Kapoor, meanwhile, found his ball and, without calling "Fore" or giving any other warning to his friends, hit the shot that went in an unintended direction and struck Anand. Anand suffered retinal detachment and permanent loss of vision in the injured eye.
Anand and his wife commenced this personal injury action against Kapoor, asserting that Kapoor's failure to warn of his shot amounted to negligence and proximately caused Anand's injury. After discovery, Supreme Court granted Kapoor's motion for summary judgment and dismissed the complaint, both for the reason that Anand was not in the foreseeable zone of danger and on assumption of risk grounds ( 2007 NY Slip Op 34463[U]). The Appellate Division, with one Justice dissenting, affirmed ( 61 AD3d 787). The same Court granted the Anands' motion for leave to appeal to this Court. We now affirm.
A person who chooses to participate in a sport or recreational activity consents to certain risks that "are inherent in and arise out of the nature of the sport generally and flow from such participation" ( Morgan v State of New York, 90 NY2d 471, 484). A court evaluating the duty of care owed to a plaintiff by a coparticipant in sport must therefore consider the risks that the plaintiff assumed and "how those assumed risks qualified defendant['s] duty to him" ( Turcotte v Fell, 68 NY2d 432, 438). However, a plaintiff "will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks" ( Morgan, 90 NY2d at 485 [citations omitted]).
Here, Kapoor's failure to warn of his intent to strike the ball did not amount to intentional or reckless conduct, and did not unreasonably increase the risks inherent in golf to which Anand consented. Rather, the manner in which Anand was injured — being hit without warning by a "shanked" shot while one searches for one's own ball — reflects a commonly appreciated risk of golf ( see Rinaldo v McGovern, 78 NY2d 729, 733).
Order affirmed, etc.