Opinion
Index No. 59445/2020 Motion Seq. 1
06-23-2021
RICHARD L. SANTANA, Plaintiff, v. TORRES BJJ, LLC d/b/a ESSENTIAL JIU JITSU Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. DAVID F. EVERETT, Justice of the Supreme Court.
The following papers were considered on the motion: Notice of Motion/Attorney Affirmation/Exhibits/Affidavit of Service/Stipulation/Stipulation So-Ordered/Memorandum of Law/ Attorney Affirmation/Exhibits/Reply Affirmation/Affidavit of Service
(NYSCEF documents numbered 27-46)
The plaintiff commenced this action to recover damages for personal injuries he sustained at a jiu jitsu class. Subsequently, by decision and order, venue of the action was changed from another County to this County. In motion sequence number 1, the defendant moves for summary judgment dismissing the complaint. The plaintiff opposes the defendant's motion. The case was recently reassigned to this Part. For reasons set forth below, the Court grants the defendant's motion.
In moving for summary judgment dismissing the complaint, the defendant argues that the plaintiff assumed all risks of injury when he voluntarily participated in the jiu jitsu class, that he expressly waived liability and assumed the risk of participating in jiu jitsu, and that there is no evidence of negligent hiring or supervising.
In opposing the defendant's motion, the plaintiff contends that the defendant failed to establish that he assumed the risk of the "pass the guard" game he was participating in when he was injured, and that the release is void under General Obligations Law § 5-326 and unenforceable under contract law.
On a motion for summary judgment, the moving party must present prima facie proof demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). If the moving party carries this initial burden, then the nonmoving party must produce evidentiary proof in admissible form to require a trial of material issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The court must view the evidence in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]).
"The doctrine of primary assumption of risk is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks...Thus, [a] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law" (Rueckert v Cohen, 116 A.D.3d 1026, 1026 [2d Dept 2014] [internal citation and quotation marks omitted]).
Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity "consents to those commonly appreciated 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 N.Y.2d 471, 484 [1997]; see Custodi v Town of Amherst, 20 N.Y.3d 83, 88 [2012]; O'Brien v Asphalt Green, Inc., 193 A.D.3d 1061 [2d Dept 2021]). "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation" (Mamati v City of N.Y. Parks & Recreation, 123 A.D.3d 671, 672 [2d Dept 2014]; see Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d 641, 642 [2d Dept 2020]).
"Assumption of risk is not an absolute defense but a measure of the defendant's duty of care...The defendant's duty is to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty" (Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d at 642-642 [internal citation and quotation marks omitted]). "It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Maddox v City of New York, 66 N.Y.2d 270, 278 [1985]). "However, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport" (Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d at 643; see Custodi v Town of Amherst, 20 N.Y.3d at 88). "[T]he doctrine requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk," which is assessed against the background of the skill and experience of the particular plaintiff (Maddox v City of New York, 66 N.Y.2d at 278; see Berrin v Incorporated Vil. of Babylon, 186 A.D.3d 1598, 1600 [2d Dept 2020]).
Here, the defendant made a prima facie showing of its entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk (see Makabali v Chilelli, _A.D.3d_ 2021 NY Slip Op 03581 [2d Dept June 9, 2021] ["The defendants made a prima facie showing of their entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk, by establishing that the plaintiff assumed the risk of being shot by an accidently discharged firearm during a high speed target shooting competition, which was a risk inherent to that sport... Moreover, the record established that the plaintiff, who had extensive firearms experience and had participated in many shooting competitions both as a competitor and as a range officer, was aware of the potential for injury as a result of being accidentally shot during the competition"] [internal citation omitted]; Koubek v Denis, 21 A.D.3d 453 [2d Dept 2005] ["The defendant established his prima facie entitlement to summary judgment by demonstrating that the plaintiff assumed the risk of using the subject trampoline"]). The defendant's submissions demonstrate, among other things, that the plaintiff, a trained law enforcement officer who had attended approximately 10 sessions in his introductory jiu jitsu class and had signed a participant waiver and release (release), assumed the inherent risk of being injured during sparring-like activity in jiu jitsu class. In opposition, the plaintiff fails to raise a triable issue of fact.
Additionally, the defendant demonstrates that it is entitled to judgment as a matter of law dismissing the complaint based on the enforceable release the plaintiff signed. That release provides, in part, that the "Participant will be participating in jiu jitsu and/or other martial arts training, sparring, and/or competitions (the 'Program'). Participant acknowledges and understands that participating in the Program is physically demanding and potentially dangerous, and that participation in the Program may result in serious physical injury and/or death" (defendant's exhibit: H). It further provides, in part, that the Participant "hereby waives, any and all claims, including any claims for property damage or personal injury to Participant..." (defendant's exhibit: H). The release "that plaintiff signed as a condition of participating in defendant's self-defense training class expresses in unequivocal terms the intention of the parties to relieve...defendant of liability for [its] negligence, and is thus enforceable" (Hsu v Krav Maga NYC, LLC, 138 A.D.3d 463, 463 [1st Dept 2016] [internal quotation marks omitted]; see Boateng v Motorcycle Safety School, Inc., 51 A.D.3d 702, 703-704 [2d Dept 2008]).
The Court rejects the plaintiff's argument that the release was void under General Obligations Law § 5-326. "General Obligations Law § 5-326 prohibits an owner or operator of a recreational facility from enforcing a release given by an individual who has paid it a fee or other compensation for the use of the facility" (Boateng v Motorcycle Safety School, Inc., 51 A.D.3d at 703). "The legislative intent of the statute is to prevent amusement parks and recreational facilities from enforcing exculpatory clauses printed on admission tickets or membership applications because the public is either unaware of them or not cognizant of their effect...Facilities that are places of instruction and training..., rather than amusement or recreation..., have been found to be outside the scope of the statute" (Lemoine v Cornell Univ., 2 A.D.3d 1017, 1018-1019 [3d Dept 2003] [internal citations and quotation marks omitted]). Here, the defendant's submissions establish that the "defendant's purpose is instructional and that its members' use of its fitness equipment is ancillary to the self-defense training" (Hsu v Krav Maga NYC, LLC, 138 A.D.3d at 464 [internal quotation marks omitted]).
The plaintiff's remaining contentions do not warrant a contrary result.
Accordingly, it is, ORDERED that the defendant's motion for summary judgment dismissing the complaint is granted; and it is further, ORDERED that the defendant must, within ten days of the date of entry, serve a copy of this decision and order with notice of entry; and it is further, ORDERED that the defendant must, within ten days after service of the notice of entry, file proof of that service via NYSCEF.
This constitutes the decision and order of the Court.