Issue of Fact Precludes Assumption of Risk Summary Judgment Argument (NY)

In the matter of Lee v Brooklyn Boulders, LLC (2017 NY Slip Op 08660), the Second Department Appellate Division confronted, and further diminished, the applicability of the primary assumption of risk doctrine.

Plaintiff was allegedly injured at the defendant’s rock climbing facility when she dropped down from a climbing wall and her foot landed in a gap between two mats, which according to plaintiff, was covered by a piece of Velcro. Defendants moved for summary judgment dismissing the complaint and the plaintiff cross-moved to add a demand for punitive damages.  Defendants argument that plaintiff signed a liability release The Supreme Court, denied the motion and the cross motion and all parties appealed.

The Appellate Division found that contrary to the defendant’s contention, the release that the plaintiff signed was void under the General Obligations law because the defendant’s facility was recreational in nature and therefore did not bar the plaintiff’s claims.  The Court noted that by engaging in a sport or recreational activity, a participant consent to those commonly appreciated risk that are “inherent in” and “arise out of the nature of the sport generally and flow from such participation.”  Here however, the defendant failed to establish, prima facie, the doctrine of primary assumption of risk applied.  The plaintiff’s deposition testimony revealed triable issues of fact as to whether the gap in the mats constituted a concealed risk and whether the inured plaintiff accident involved an inherent risk of rock climbing.  Therefore, defendant’s motion was properly denied.  The Court also found that the Supreme Court providently exercised its discretion in denying the cross motion for leave to amend the complaint to add punitive damages.

This case illustrates that to the extent a party seeks to apply assumption of risk proactively in dispositive motions, the court will stridently parse the record for triable issues of fact.  While assumption of risk continues to endure in a comparative setting, its applicability on a primary basis is becoming fewer and further in-between.  Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Second Department Reiterates Defendants’ High Burden in Negligent Supervision Case (NY)

In K.J. v. NYC BOE., the Second Department recently discussed the high threshold required to prevail on a motion for summary judgment in a negligent supervision case.

The case arose from an incident in December of 2014, when the 14 year old plaintiff was allegedly assaulted by four fellow students in a stairwell leading to the cafeteria of Lincoln High School in Brooklyn. The plaintiff sustained various injuries, including a fractured orbital bone. Plaintiff’s father, Lonnie Jefferson, brought suit on behalf of his son, and individually, against the City of New York, the Board of Education, and the New York City Department of Education (DOE), alleging negligent supervision. The defendants moved for summary judgment, basing their motion, in part, on the plaintiffs’ 50-H hearing testimony and the deposition testimony of a school safety officer. The infant plaintiff testified that while he was in the cafeteria, one of the assailants threw an object at him. When the plaintiff went over to the assailants’ lunch table, he was challenged to a fight. The plaintiff refused to fight and returned to his lunch table without reporting the incident to any teachers. At the end of lunch, the plaintiff left the cafeteria doors and walked into the stairwell to go to his next class. The four assailants cornered the plaintiff punched and kicked him for approximately 25 seconds. Afterwards, the plaintiff found a dean who took him to the nurse’s office. There were no school safety officers, school personnel, or security cameras in the stairwell at the time of the incident.

At his deposition, the school’s safety officer testified that his duties did not include supervising the cafeteria during lunch, which was done by the deans. As a general matter, during the break between class periods, teachers stood in the hallway while the school safety officers patrolled the hallways to make sure the students were headed to class. The officer did not witness the assault, but was radioed by the dean to help to the plaintiff. He also did not know the number or identities of the students who attacked the plaintiff, although he recalled seeing at least one of the assailants in the principal’s office on a prior occasion. The officer testified that he had a supervisor who was in charge of school safety personnel in the building, but the defendants provided no evidence from that supervisor or anyone familiar with the students involved in the assault.

The Supreme Court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint, and the plaintiffs appealed. On appeal, the Second Department recited the rule that “schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” To determine whether school officials breached their duty to supervise, the first question is whether they had “sufficiently specific knowledge or notice” of the dangerous conduct. Broadly, this requires that the school have actual or constructive notice of prior similar incidents, and injuries that result from the unanticipated or impulsive actions of a student will not result in a finding of negligence.

The Second Department found that defendants failed to provide evidence showing that they lacked notice the assailant’s prior violent behavior. Further, the safety officer’s testimony regarding the disciplinary history of one of the assailants created triable issues of fact as to whether the defendants had specific knowledge of any dangerous propensities. Lastly, they failed demonstrate the general security measures at the school, including the number of school safety officers on duty, their assignments in the vicinity of the cafeteria and stairwell, or the frequency of violent incidents.

Not only did defendants fail to demonstrate their lack of notice, they also failed to eliminate all triable issues to fact as to the second critical point: whether the alleged inadequate security proximately caused the incident. To determine causation, the court must determine whether “the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school’s negligence.” Here, the defendants failed to show that the incident occurred in such a short time span that even the most intense supervision could have prevented it.

Accordingly, the Second Department held that defendants failed to establish their prima facie entitlement to summary judgment as a matter of law. Interestingly, the Court noted that the trial court should have been able to reach this conclusion regardless of plaintiff’s opposition papers. Likely, this is a result of defendants’ failure to offer testimony or a sworn affidavit from anyone with knowledge of the incident, the assailant’s past behaviors, or the school’s general security policies.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Vague Discovery Responses Insufficient to Withstand Dismissal (NY)

One of the most important parts of our practice, especially in terms of litigation, is the receipt of discovery and providing discovery to our adversaries. Document and information exchange often leads to motion practice where a party refuses to provide certain documents and information or is delinquent in providing them.

More often than not, if a party can show that they have made efforts to respond, either by partial responses or correspondence, a Court will not grant a motion to dismiss for failure to provide discovery. Often, attorneys will provide just the bare minimum by way of a response but that will be sufficient to withstand the “willful and contumacious” standard of conduct which results in dismissal.

It appears, from the recent decision of the Appellate Division, Second Department, that bare minimum, nonspecific, or non-complete discovery responses may no longer be enough to withstand dismissal. In Corex v. Janel Group of New York, Inc., 2016-07342 (2d Dept. 2017), plaintiff was given a final deadline to provide specific responses to the defendants demands and sworn responses to interrogatories. The Order included language which directed dismissal of the claims if full and adequate discovery was not received.

At the zero hour, plaintiff electronically filed unsworn, unsigned and undated affidavits stating that documents and information were lost by a prior principal of the plaintiff company and as such proper responses could not be provided. The Court found that unsworn, unsigned and undated affidavits were insufficient to satisfy responses to the discovery demands or adequate excuse for failure to adequately respond. The Appellate Division concurred and found that the initial failure to respond per the Preliminary Conference Order and subsequent failure to provide responses with sufficient specificity warranted dismissal of the case.

This decision confirms a recent trend within the venues in which we practice where Court’s are cracking down on discovery disputes, delays in completing discovery and parties who willfully delay the progression of a case.  The scrutiny a Court applies to discovery non-compliance is like a pendulum, and recently in New York, the pendulum is swinging toward compliance.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

No Foul: Plaintiff Assumed the Risk of Playing Basketball (NY)

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.

WCM Achieves Favorable Verdict in Queens County Damages Trial

On Monday, November 27, 2017, New York Office Partner Brian Gibbons completed a three week damages trial in Queens County, stemming from a 2014 motor vehicle accident.  The plaintiff, 22 at the time of the accident, was rear-ended on the Northern State Parkway, and taken to the hospital from the scene.  Eight months later, after physical therapy, epidural injections, neurological and orthopedic treatment, she underwent a cervical fusion at C6-7, and filed suit against the defendant owner and operator.   This being a rear-end collision, plaintiff was awarded summary judgment on liability back in 2016, and the damages trial commenced on November 8, 2017.

The trial involved 13 witnesses, including biomechanical experts, plaintiff’s spinal surgeon, Dr. Sebastian Lattuga, and multiple damages experts on both sides.  The plaintiff’s strategy was to stress the lack of any prior complaints or injuries to the young plaintiff’s neck or back, and her consistent treatment after the accident, eventually leading to a necessary spinal fusion surgery.  Our defense focused on the degenerative nature of herniations, and that the low-speed impact did not cause the cervical herniation.

In summation, plaintiff’s counsel asked for $7 million ($1.8 million past pain & suffering, $3.2 million future pain and suffering, and $2 million in future medicals, based upon her life care planner and economist, and claims of future fusion at C5-6.)   We pressed for a defense verdict, based upon the lack of causation.  We also took an aggressive approach during summation, arguing that plaintiff’s course of treatment and surgery was an orchestrated “money grab,” because the herniation could not have been caused by this minor impact.  In the alternative, we recommended $300,000 as an appropriate award, if the jury found plaintiff proved causation and met the serious injury “threshold.”

During the 2nd day of deliberation, the jury awarded plaintiff the $300,000 we had suggested.  (There was a high-low in place at the time of the verdict.)  Seeing that the plaintiff’s final “bottom line” settlement demand during deliberations was $3 million, the verdict was a great outcome after a particularly long damages trial that involved ten expert witnesses.  The jury was attentive throughout the trial, and we think, got this one right.

3rd Dept. Refuses to Apply Primary Assumption of Risk Doctrine to Trampoline Case

In DeMarco v. DeMarco, the Third Department recently declined to apply the primary assumption of risk doctrine to jumping on a trampoline.

The case arose when the 48-year-old plaintiff was visiting the home of the defendants – her brother and sister in law – and plaintiff’s 9-year-old nephew asked her to join him on defendant’s trampoline. The plaintiff had never been on a trampoline before, but she agreed. After initially jumping in unison, the plaintiff’s nephew began “double jumping” the plaintiff, meaning he intentionally jumped out of unison with the plaintiff. This threw the plaintiff off balance, causing her land on the trampoline hard, fracturing several bones in her left foot. Plaintiff then commenced this action seeking damages from the defendants.

At trial, defendants sought a jury charge regarding primary assumption of risk. This request was denied and the court instead charged the jury regarding implied assumption of risk. The jury found in favor of the plaintiff and awarded her $220,000 for past pain and suffering and $580,000 for future pain and suffering.

On appeal, the Third Department noted that under CPLR 1411, any culpable conduct by plaintiff, including “assumption of the risk,” does not bar plaintiff’s recovery in New York. However, the Court of Appeals has held that CPLR 1411 does not prevent the primary assumption of risk doctrine from being used as a defense to tort recovery in cases involving certain sports or recreational activities.

But the Court of Appeals has also held that the assumption of risk doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation.” See Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist., 927 N.E.2d 547 (2010). In practice, this means that the doctrine is limited to situations where it is considered appropriate to absolve a parties’ duty of care, such as certain designated sporting and recreational events. See id.

Defendants acknowledged that jumping on a trampoline did not fit on the narrow list of the activities that courts had previously applied the primary assumption of risk doctrine. However, they argued that applying the doctrine to the case at bar would be in keeping with the doctrine’s underlying purpose – to facilitate free and vigorous participation in athletics. The Court was not persuaded, and held that jumping on a trampoline was not the type of socially valuable activity that the doctrine seeks to encourage.

Interestingly, although the defendants also raised several issues regarding the substance of the implied assumption of risk jury charge, they failed to make those specific objections at trial. Rather, they only objected to the court’s decision to charge the jury with implied assumption of risk, instead of primary assumption of risk. Because of this, the Third Department held that these issues were not preserved for appellate review. Given the incredibly narrow scope of cases to which courts will apply the primary assumption of risk doctrine, it seems defendants would have been better served by focusing their fight on the substance of the jury charge that was actually given.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Unintentional Destruction of Security Footage is No Excuse (NY)

In personal injury cases the existence of security footage of the incident itself is rare, often due to the length of time between an accident and the commencement of a lawsuit. In many instances, especially where a defendant may not even know an accident occurred, the footage is erased within days or hours of the accident and irretrievable at a later date. Normally, that would not result in a finding of spoliation.  However, where a party did maintain the evidence initially, and it was later destroyed, the outcome may not be so favorable.

In Eksarko v. Associated, 2017 Slip Op 07975 (2d Dept. 2017), plaintiff alleged that she slipped and fell on a grape that had fallen onto the floor of the defendant supermarket. The supermarket, having been notified by plaintiff at the time of the accident that she was injured, pulled and saved the footage of the accident caught on the store’s security video system.

Shortly after commencement of the lawsuit, the store was undergoing renovations when the computer that was storing the footage was destroyed and could not be retrieved. This was conveyed to plaintiff through counsel and through testimony of the Store Manager. When the defendant moved for summary judgment plaintiff cross-moved seeking sanctions for the defendants alleged spoliation of evidence due to the destruction of the video footage.

The Appellate Division overturned the lower Court’s decision and denied the defendants’ motion for summary judgment and granted plaintiff’s cross-motion for sanctions against the defendant. The Court found that even where evidence was destroyed negligently, versus intentionally, if a party can show that the evidence was relevant to their claim or defense the Court can impose sanctions against the party that failed to preserve the evidence.

The Appellate Division found that plaintiff established that the footage was relevant to her claims and to defeating the defendant’s motion on notice and as such sanctions against the defendant were warranted. Due to the fact that plaintiff had other evidence to establish her claim and that the spoliation was not intentional, but negligent, the Court determined that it would not strike the defendants Answer, but rather would direct an adverse inference charge at trial related to the destroyed footage.   The message is clear — if you have notice of a claim and of the existence of footage, save that footage!  And as attorneys and claim professionals, we need to remind insured clients of their duties to preserve such footage.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Note of Issue Received Unless Proven Otherwise (NY)

A note of issue date is one of the most important dates for defendants to monitor in litigation in New York.  In Meisels v Raptis, the Supreme Court, Kings County, denied medical malpractice defendants’ motion to strike plaintiff’s note of issue and extend time for filing summary judgment despite their claim that they had never received it.

The plaintiffs alleged that the defendants failed to timely diagnose a two year old child’s Herpes Encephalitis that caused developmental delays.  Although the court extended the date for filing a note of issue to February 3, 2017, the plaintiff filed on August 22, 2016, along with a certificate of trial readiness.

The defendants disputed receipt of the note of issue and sought to strike it well beyond the twenty days allowed for such a motion.  Significantly, the failure to timely move to strike prohibited the defendants from filing for summary judgment.  Curiously, the defendants did not question the affidavit of service that had been filed with the note.  Instead, they argued that fact discovery had continued and was outstanding even after the filing of the note of issue.  This, they said, proved that there was an incorrect material fact in the certificate of readiness.

The court ruled that the defendants’ motion to strike the note of issue was untimely and found defendants failed to show “unusual or unanticipated circumstances.”  This ruling effectively ended defendants’ right to receive outstanding discovery, placed the matter on the trial calendar, and precluded defendants from moving for summary judgment.

The court set precedent that, if defendants truly believe they did not receive the note of issue, they must attack the affidavit of service.

Thanks to Christopher Gioia for his contribution.

For more information, contact Denise Fontana Ricci at


Beware: Basketball Is A Contact Sport (NY)

A high school student who opted to play basketball in gym class voluntarily engaged in an activity with awareness of the risks inherent to playing, including the possibility of collision or contact with another participant.  This voluntary assumption of the risk barred a suit for negligence against his high school.

In Hanson v Sewanhaka Central High School District, the plaintiff alleged that he was injured during a basketball game in gym class after he was kicked in the leg by a fellow student. The defendant school district and defendant student both moved for summary judgment, arguing the doctrine of primary assumption of risk, and both motions were granted by the lower court. The plaintiff appealed.

Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”. By freely assuming these risks, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from them, if the risks are fully comprehended or perfectly obvious. However, a plaintiff cannot assume the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

The Appellate Division, Second Department, found that the plaintiff opted to play basketball from a number of options. He was aware of the risks inherent to playing, including potential physical contact with other students. Although the plaintiff testified at a hearing on the motion that the other student purposely kicked him, this was neither pled in his complaint nor mentioned in his bill of particulars.  The court disregarded this testimony as a plaintiff cannot raise a new or materially different theory of recovery for the first time in opposition to a motion for summary judgment.

The plaintiff also sought to defeat summary judgment by application of the inherent compulsion doctrine.  However, this doctrine precludes an assumption of the risk defense where the plaintiff’s conduct is not voluntary due to the compulsion of a superior. In essence, plaintiff alleged that the School forced him to participate in basketball. However, plaintiff’s own testimony demonstrated that he elected to play basketball over a variety of other gym activities. The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the moving defendants.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at


Yankees Safe in Foul Ball Accident (NY)

Yankees fans will recall a scary incident in late September where a young child was struck by a foul ball at Yankee Stadium.  Although there has been no word whether the family will sue the Yankees, a recent appellate decision may impact the issue.

In Zlotnick v. New York Yankees Partnership, plaintiff brought a personal injury action against the Yankees for injuries sustained when he was struck in the eye by a foul ball as he was sitting in his seat halfway down the first-base line, a few rows from the field. The Supreme Court granted the Yankees’ motion for summary judgment and plaintiff appealed.

The First Department upheld the lower court’s decision and ruled the Yankees did not breach a duty of care, since the evidence showed that appropriate netting was erected behind home plate (which is essentially the limit of what a stadium is required to do to meet the duty of “reasonable care”) and there was no evidence indicating that there was a lack of available seating in this protected area.

The Court rejected plaintiff’s argument that the defendants’ conduct enhanced the risks normally attendant to the game of baseball because the game was played in  rainy weather, and that the Yankees did not enforce the stadium’s policy against the use of umbrellas that obstruct the ability of other patrons to view the game, because rainy weather and umbrellas are not uncommon at baseball games.

In addition, the Court pointed to the warnings about foul balls on the back of plaintiff’s ticket, on the back of the seats, as well as those regularly made over the public address system, which called upon plaintiff to request a change of seating if plaintiff was worried about being struck by a foul ball.

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