Summary
In Scally v J.B., 187 AD3d 959 (2d Dept 2020), the Second Department reversed a finding of summary judgment in favor of defendant, finding operating a hover board in defendant's driveway was not a designated venue for application of the doctrine (see also,Suzanne P. v Joint Bd. of Directors of Erie-Wyoming County Soil Conservation Dist., 175 AD3d 1093 [4th Dept 2019] [plaintiff went into creek off of county hiking trails, went over waterfall created by a dam, court found that he was not wading or swimming at a designated venue, assumption of the risk did not apply]).
Summary of this case from Alfieri v. State of N.Y.Opinion
2019–02784 Index No. 32157/17
10-14-2020
Carmela SCALLY, etc., appellant, v. J. B., etc., et al., respondents.
The Post Law Firm, PLLC, Suffern, N.Y. (Craig A. Post of counsel), for appellant. Robert A. Pierce, White Plains, N.Y. (Richard A. Salvato of counsel), for respondents.
The Post Law Firm, PLLC, Suffern, N.Y. (Craig A. Post of counsel), for appellant.
Robert A. Pierce, White Plains, N.Y. (Richard A. Salvato of counsel), for respondents.
RUTH C. BALKIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Rockland County (Rolf Thorsen, J.), dated January 29, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
On June 17, 2016, the infant plaintiff (hereinafter the plaintiff), who was 14 years old at the time, allegedly was injured when he fell off the defendants' hover board in their driveway. The plaintiff alleges that the defendants were negligent in, inter alia, allowing him to operate the hover board without proper instruction and without providing elbow or knee pads or a helmet. After discovery, the defendants moved for summary judgment dismissing the complaint, contending that the action against them was barred under the doctrine of assumption of risk. By order dated January 29, 2019, the Supreme Court granted the defendants' motion. The plaintiff appeals.
We disagree with the Supreme Court's determination to grant the defendants' motion for summary judgment. 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, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Raldiris v. Enlarged City Sch. Dist. of Middletown, 179 A.D.3d 1111, 1113, 118 N.Y.S.3d 696 ). "As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues" ( Custodi v. Town of Amherst, 20 N.Y.3d at 89, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; see Raldiris v. Enlarged City Sch. Dist. of Middletown, 179 A.D.3d at 1113, 118 N.Y.S.3d 696 ). Here, the plaintiff was operating the hover board in the defendants' driveway, not a designated athletic or recreational venue; nor did the defendants actively sponsor or promote the activity (see Custodi v. Town of Amherst, 20 N.Y.3d at 89, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Suzanne P. v. Joint Bd. of Directors of Erie–Wyoming County Soil Conservation Dist., 175 A.D.3d 1093, 1095–1096, 107 N.Y.S.3d 595 ; DeMarco v. DeMarco, 154 A.D.3d 1226, 1227–1228, 63 N.Y.S.3d 586 ; Redmond v. Redmond, 126 A.D.3d 1476, 1477, 6 N.Y.S.3d 355 ). Accordingly, the defendants failed to establish, prima facie, that the doctrine of primary assumption of risk applied to the circumstances of this case, and the Supreme Court should have denied the defendants' motion for summary judgment without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The defendants' remaining contention is without merit.
BALKIN, J.P., BARROS, CONNOLLY and WOOTEN, JJ., concur.