Summary
affirming denial of defendant's motion for summary judgment "in light of the evidence presented by the plaintiffs that the injury was not caused by a sudden collision common to this sport but was due to the reckless actions of another skater which the defendant, by adequate supervision, could have prevented"
Summary of this case from Diaz v. High Rollers Recreational Ctr., Inc.Opinion
February 13, 1996
Appeal from the Supreme Court, Westchester County (Ingrassia, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Janet Shorten was injured while ice skating on a rink owned by the defendant, allegedly when an unknown skater pushed her down. She commenced this action against the defendant based in part on a claim that the defendant was negligent in its supervision of the skaters. At a hearing held pursuant to General Municipal Law § 50-h, the plaintiff testified that she had observed a group of teenage boys skating recklessly, "darting in and out" of the crowd, for about an hour prior to her accident. She said the boy who pushed her down was particularly aggressive, and she saw him nearly knock down another skater minutes before her accident. The defendant moved for summary judgment on the ground that the plaintiff assumed the risk of her injury by continuing to skate in the presence of a known and obvious risk.
We conclude that the Supreme Court properly denied the defendant's motion. Generally, a defendant may not be held liable for breach of its duty to supervise a recreational area where the injury is caused by "`the dangers inherent in the sport so far as they are obvious and necessary'" (Heard v. City of New York, 82 N.Y.2d 66, 71) and where the injury could not have been prevented by even the most intensive supervision (see, e.g., Baker v Eastman Kodak Co., 34 A.D.2d 886, affd 28 N.Y.2d 636; Winter v City of New York, 208 A.D.2d 827). Here, however, the defendant failed to establish its freedom from liability as a matter of law in light of the evidence presented by the plaintiffs that the injury was not caused by a sudden collision common to this sport but was due to the reckless actions of another skater which the defendant, by adequate supervision, could have prevented (see, e.g., Fritz v. City of Buffalo, 277 N.Y. 710; Trainor v. Oasis Roller World, 168 A.D.2d 235; Bloom v. Dalu Corp., 269 App. Div. 192). Rosenblatt, J.P., O'Brien, Pizzuto and Goldstein, JJ., concur.