In Hanson v. Sewanhaka, et. al, the plaintiff allegedly was injured during a basketball game in a gym class at Elmont Memorial High School when he was kicked in the leg by another student, the defendant Malik Freeman. The plaintiff sued the other student and the Sewanhaka Central High School District. Both defendants moved for summary judgment and the Supreme Court granted both motions.

On appeal, the defendants cited to the doctrine of assumption of risk, which holds that when a person consents to the commonly associated risks inherent in the sport and freely assumes a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk. Here, a leg injury caused by a collision between two players is certainly a commonly associated risk while playing basketball.

In his brief, plaintiff alleged that Freeman kicked plaintiff intentionally; however, in his complaint the plaintiff had not asserted a cause of action for an intentional tort, and neither the second amended complaint nor the bills of particulars alleged intentional conduct. The court held that a plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars. Therefore, since the defendants established prima facie proof that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants, the Second Department did not find the plaintiff’s argument persuasive.

The Second Department also held because the plaintiff testified he chose to play basketball from a number of options, the inherent compulsion doctrine was inapplicable. Voluntary participants in sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of nature of sport or activity generally and flow from such participation; however, the defense is not applicable if the participant is forced to compete or take part in the activity. Since, the plaintiff had options as to which sport to play, he was not forced to participate in this activity; therefore, the Second Department denied that argument and affirmed the Supreme Court’s decision granting summary judgment to both defendants.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.