Opinion
6543/2005.
Decided August 16, 2006.
Shannon M. Heneghan, Esq., SUGARMAN LAW FIRM LLP, Attorneys for Plaintiff, Buffalo, New York.
Philip B. Abramowitz, Esq., BARTH SULLIVAN BEHR, LLP, Attorneys for Defendants, Buffalo, New York.
The defendants have moved to amend their answer to assert an affirmative defense based on primary assumption of risk, and for summary judgment on the grounds that the plaintiff's primary assumption of the risk bars her from recovery. The plaintiff opposes the motion asserting that the plaintiff would be prejudiced by the amendment, and that even if the amendment was permitted, there are questions of fact precluding summary judgment.
The plaintiff commenced this action as a result of an incident that occurred in the early morning of July 17, 2004 at the tavern located at the defendant Thruway Inn, Inc. ("Inn"). The facts viewed in the light most favorable to the plaintiff establish that the plaintiff, a 21-year old college student, arrived at the Inn on July 16, 2004 at approximately 10:00 p.m. Although the plaintiff was employed at the Inn as a bartender, she was not working on the date of the incident. The defendant Richard Osborne a/k/a Rick Osborne ("Osborne"), was employed as a bartender/manager at the Inn. The plaintiff was at the Inn to attend a "beer blast".
At some time in the early morning of July 17, 2004, the plaintiff agreed to do a "trick" that involved lighting 151 proof rum in her mouth so that someone could light a cigarette from the flames in her mouth. She then would spit the flaming rum into a sink. The plaintiff had participated in this same activity prior to the night of the incident. The plaintiff was injured before any cigarette was lit when some of the flaming rum dribbled out of her mouth and her hair was ignited.
The plaintiff filed her complaint on July 18, 2005 and issue was joined by the defendants on August 11, 2005. The note of issue was filed on March 31, 2006.
II. Decision
A. Amendment of Answer
A motion for leave to amend a pleading is committed to the sound discretion of the trial court ( Edenwald Contr Co v City of New York, 60 NY2d 957). Generally, where the proposed amendment is not plainly lacking in merit, leave to amend a pleading should be freely granted, in the absence of prejudice to the non-moving party ( McFarland v Michel , 2 AD3d 1297 , 1300; see CPLR 3025[b]).
The deposition testimony of the parties was among the exhibits attached to the defendants' moving papers. As such, the defendants provided the necessary evidentiary support to establish that the proposed amendment is not lacking in merit ( McFarland, 2 AD3d at 1300). In addition, the defendants' motion was made ten (10) months after the summons and complaint were filed and six (6) weeks after the note of issue was filed. Thus, there was no extended delay in making the motion ( Id). In any event, "[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side" ( Edenwald Contr Co, 60 NY2d at 959).
Contrary to the assertions of the plaintiff, there is no prejudice in allowing the proposed amendment. The prejudice asserted by the plaintiff is that the defense may bar her claim. This does not constitute the type of prejudice justifying denial of the motion as there must be a demonstration that the plaintiff "has been hindered in the preparation of her case or has been prevented from taking some measure in support of her position" ( Loomis v Civetta Corinno Constr Corp, 54 NY2d 18). The prejudice must be directly related to the defendants' failure to include the proposed amendment in the original answer.
Further, where as here, the original pleading put the plaintiff on notice of the occurrence giving rise to the proposed amendment, denial of the motion to amend is not warranted ( Rogers v South Slope Holding Corp, 255 AD2d 898). The defendants' answer, dated August 11, 2005, included an affirmative defense that asserted, inter alia, that the plaintiff's injuries resulted from the "negligence, recklessness, want of due care and other culpable conduct of the plaintiff, including assumption of risk". While assumption of risk, when pled in the context of comparative negligence, is distinguishable from the doctrine of primary assumption of the risk in that the former reduces the recovery of the plaintiff proportionate to her culpable conduct and the latter is a complete bar to recovery, the defenses are based on the same facts, facts that here were known to the plaintiff. The plaintiff was on notice at the time she received the defendants' answer that her recklessness and assumption of the risk were contested issues. As a result, the new defense should not have been a surprise to the plaintiff.
Based on the foregoing, the defendants' motion for leave to amend the answer to add an affirmative defense based on primary assumption of risk is granted.
B. Summary Judgment
In order to recover in this negligence action, the plaintiff must establish that her "interests are entitled to legal protection against the defendant's conduct", that is, that the defendants owed her a duty ( Turcotte v Fell, 68 NY2d 432, 437). In determining the existence of a duty and the scope of that duty, consideration must be given to the plaintiff's reasonable expectations of the care owed to her by the defendants ( Id). That analysis includes an evaluation of the risks assumed by the plaintiff in choosing to participate in an activity.
Under the doctrine of primary assumption of the risk, "[i]f a participant [in an activity] makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if [s]he is injured as a result of those risks" ( Id). "Whether it can be concluded that a plaintiff made an informed estimate of the risks involved in an activity before deciding to participate depends on the openness and obviousness of the risk, plaintiff's background, skill, and experience, plaintiff's own conduct under the circumstances, and the nature of defendant's conduct" ( Lamey v Foley, 188 AD2d 157, 164). A plaintiff is deemed to have assumed those risks that are known and fully comprehended, open and obvious, inherent in the activity, and reasonably foreseeable consequences of the activity ( Turcotte, 68 NY2d at 439; Lamey, 188 AD2d at 164). However, "it is not necessary to demonstrate that the plaintiff foresaw the exact manner in which [her] injury occurred" ( Lamey, 188 AD2d at 164).
In this case, there is no question that the plaintiff was not compelled to participate in the activity; her participation was voluntary. Thus, the focus of the analysis is the scope of the plaintiff's consent. On the night of the incident, the plaintiff admitted pouring rum into her mouth and tilting her head back to hold the rum in her mouth so that Osborne could hold a match to the rum in her mouth, causing the rum to flame. The plaintiff also admitted that she had done this "trick" before and she does not claim that Osborne's actions on the night she was injured were anything other than what she expected relative to the performance of the trick. Although the plaintiff testified that she did not think she or anyone could be burned as a result of the "trick" or that the "trick" was dangerous, that testimony as to what she appreciated as a risk attendant to the activity is not dispositive of the issue. Any reasonable adult who knowingly comes into contact with fire, or as in this case, permits a flammable liquid to be lit in her mouth, should appreciate the risk of being burned. That is a risk inherent in the activity and so obvious that the plaintiff should have known and comprehended it.
The plaintiff further asserts that summary judgment is not appropriate under the doctrine of primary assumption of risk because Osborne's conduct was reckless. However, the general rule enunciated in Turcotte that a plaintiff will not be held to have assumed the risk of injury intentionally or recklessly caused by a defendant clearly does not apply to a plaintiff, such as this one, who voluntarily participated in an activity that was inherently reckless. Osborne's conduct in the performance of the "trick" was exactly as the plaintiff expected. Had Osborne engaged in some unexpected reckless or intentional conduct, it might be said that the plaintiff did not assume the risk. However, that simply is not the case here.
Finally, the plaintiff asserts that lighting a cigarette violated the Clean Indoor Air Act (Public Health Law § 1399) and that Osborne may have asked the plaintiff to lie about how the incident occurred and apologized to the plaintiff after it happened. Neither contention alters the conclusion that the plaintiff's injuries were a direct and foreseeable consequence of her knowing participation in the activity.
While the doctrine of primary assumption of the risk typically is applied to cases involving sporting and recreational activities, it also has been applied to cases involving dangerous non-sporting activity ( Watson v State of New York, 52 NY2d 1022; Sy v Kopet, 18 AD3d 463). The facts of this case involving the voluntary participation in a highly reckless and extremely dangerous activity make at least as compelling a case for summary judgment as the primary assumption of risk cases involving sporting activities. Because the danger of being burned was obvious and inherent in the "trick", the plaintiff, by participating in that activity, consented to relieve the defendants of the legal duty to use reasonable care in doing the "trick" and assumed the risk of any injuries resulting from that activity. Thus, this Court finds that the defendants have established their entitlement to judgment as a matter of law and the plaintiff has failed to raise a triable issue of fact.
Based on the foregoing, it is hereby
ORDERED that the defendants' motion for leave to amend the answer is granted; and it is further
ORDERED that the defendants' motion for summary judgment is granted in its entirety.
The foregoing Decision constitutes the Order of this Court. No further Order need be submitted.