Opinion
2014-04-22
SHAKURA T., an infant by her mother and natural guardian, Eveline D., et al., Plaintiffs–Appellants, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Burns & Harris, New York (Christopher J. Donadio of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondents.
Burns & Harris, New York (Christopher J. Donadio of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for respondents.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered November 23, 2012, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Where students are engaged in wholly voluntary extracurricular athletic endeavors, the school sponsoring such activity is under a duty of ordinary reasonable care, a duty to protect student athletes from unassumed, concealed or unreasonably increased risks ( see Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 654, 543 N.Y.S.2d 29, 541 N.E.2d 29 [1989];Barretto v. City of New York, 229 A.D.2d 214, 218, 655 N.Y.S.2d 484 [1st Dept.1997], lv. denied 90 N.Y.2d 805, 661 N.Y.S.2d 831, 684 N.E.2d 281 [1997] ). Here, plaintiff assumed the risk that she might lose her balance and fall while roller skating ( see Vaughan v. Skate Key, 270 A.D.2d 103, 704 N.Y.S.2d 252 [1st Dept.2000]; Lopez v. Skate Key, 174 A.D.2d 534, 571 N.Y.S.2d 716 [1st Dept.1991] ).
“Logically, once a plaintiff has assumed a risk, recovery premised on injury attributable to the risk assumed is barred. Recovery may not, in such a circumstance, be had on a theory of negligent supervision” ( Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 251, 850 N.Y.S.2d 38 [1st Dept.2008], affd.10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719 [2008] ). Thus, since plaintiffs fail to point to any evidence that defendants concealed or unreasonably increased the risk to the infant plaintiff, their claim of negligent supervision necessarily fails ( compare Ross v. New York Quarterly Mtg. of Religious Socy. of Friends, 32 A.D.3d 251, 819 N.Y.S.2d 749 [1st Dept.2006]; Traficenti v. Moore Catholic High School, 282 A.D.2d 216, 724 N.Y.S.2d 24 [1st Dept.2001] ). MAZZARELLI, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, KAPNICK, JJ., concur.