Summary
holding plaintiff assumed risk of using trampoline where she failed to adduce evidence that she was unaware of the potential for injury
Summary of this case from Duchesneau v. Cornell Univ.Opinion
2004-07810.
August 15, 2005.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Dollard, J.), dated June 21, 2004, which denied his motion for summary judgment dismissing the complaint.
Epstein, Grammatico, Gann, Frankini Marotta, Woodbury, N.Y. (Dennis S. Heffernan of counsel), for appellant.
Barton, Barton Plotkin, LLP, New York, N.Y. (Elizabeth Mark Meyerson of counsel), for respondent.
Before: Prudenti, P.J., Florio, Cozier and Lifson, JJ., concur.
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The 54-year-old plaintiff sustained personal injuries after she climbed onto a three-feet high trampoline located in the defendant's backyard and fell onto the grass while attempting to stand.
Under the assumption of the risk doctrine, a defendant is relieved of liability for injuries to a party who participates in a sporting event or recreational activity where such party is aware of the risks inherent in such activity, has an appreciation of the nature of such risks, and voluntarily assumes those risks ( see Morgan v. State of New York, 90 NY2d 471, 484; Lapinski v. Hunter Mtn. Ski Bowl, 306 AD2d 320, 321). The defendant established his prima facie entitlement to summary judgment by demonstrating that the plaintiff assumed the risk of using the subject trampoline ( see Liccione v. Gearing, 252 AD2d 956).
Since the plaintiff failed to raise a triable issue of fact in opposition to the motion, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint ( see Lumley v. Motts, 1 AD3d 573; Lapinski v. Hunter Mtn. Ski Bowl, supra; Liccione v. Gearing, supra).