Court Tackles Plaintiff’s Touch Football Lawsuit (NY)

In E.B. v. Camp Achem, a 15 year old plaintiff was injured while at defendant’s summer camp during a game of touch football. Plaintiff allegedly ran into a metal bench that was on the field near the area the campers were playing football. The Supreme Court denied defendant’s motion for summary judgment and the defendant’s appealed.

The Appellate Division, Second Department overturned the lower court’s decision and granted summary judgment to the defendant because of the doctrine of primary assumption of risk: “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.”

The defendants cited plaintiff’s deposition testimony where he said there was nothing marking the area where the benches were located as the end zone, but if the ball was caught in the vicinity of the bench, the campers would consider that a touchdown. Since the plaintiff, who had been playing football on this field for more than an hour when the accident occurred, was aware of that condition and voluntarily chose to play on the field, he assumed the risk of injury of colliding into one of the benches.

Furthermore, the court determined the bench was an open and obvious condition as it was clearly visible hazard. Plaintiff also testified that he flipped over one of the benches as he was running for a pass and that, prior to turning to catch the ball, he had run the full length of the field looking ahead toward the benches.

Due to the plaintiff voluntarily playing football and being aware of his surroundings for over an hour, the Second Department agreed that plaintiff assumed the risk persuasive and granted defendant’s motion for summary judgment.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information.

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.

Plaintiff Assumed Risk of Funplex Foam Balls (NJ)

In Osei-Amoako v. Stafford FEC, Plaintiff broke her ankle when she slipped and fell on foam balls while supervising her four-year-old son in an amusement attraction, Foam Frenzy, at the Funplex owned and operated by defendant. The court granted summary judgment to defendant, holding that plaintiff’s injury was not caused by defendant’s breach of duty, but due to her own conduct.  Plaintiff appealed from the order, contending that the judge erred because the facts supported plaintiff’s theory of liability against defendants.

The Foam Frenzy is an amusement attraction for children. There are 8,000 to 10,000 foam balls throughout the attraction which is set up so that participants can chase each other, throw foam balls at each other, and dodge foam balls while playing in the attraction. Plaintiff alleged that she slipped and fell on one of more than fifty foam balls in her immediate area while walking toward her son. She alleged that the foam balls blended into the carpeted floor.  Additionally, she witnesses two Foam Frenzy employees attempting to fix an inoperable vacuum that was used by participants to suck up and recirculate the loose foam balls back onto designated areas.

The court recognized that defendants owed plaintiff a duty of reasonable care to maintain a safe environment. However, the court held that defendants did not breach that duty and there was no dangerous condition in the Foam Frenzy.  The court opined that the main component of the Foam Frenzy was to play in an area overfilled with foam balls.

The appellate court affirmed the trial court’s holding, as plaintiff’s injury was the result of slipping on a foam ball, and no reasonable juror could find that defendants breached its duty of care when plaintiff was engaged in the very activity that she and her son expected.  Essentially, she assumed the risk inherent in a foam ball kiddie park… whatever risk that may have been.  Thanks to Steve Kim for his 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.

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.

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


Release Bars Dumbbell Injury at Health Club (NJ)

In Pulice v. Green Brook Sports & Fitness, New Jersey’s Appellate Division addressed whether plaintiff’s signed waiver released a health club from liability for injuries she suffered while exercising at the club.

When plaintiff first joined the health club, she signed a waiver and release stating: “Members and member’s guests shall hold the club harmless from any cost, claim, injury, damage or liability incurred at the club . . . Members shall be responsible for any property damage or personal injury caused them, their family or their guests.” Soon after, plaintiff was injured at the health club when a ten-pound dumbbell fell on her face as her trainer (whom she hired through the health club) was handing it to her to perform an exercise.

Plaintiff later sued the health club alleging negligence. Plaintiff opposed the health club’s motion for summary judgment, arguing that the waiver and release was ambiguous and therefore the defendant was not shielded from liability. The trial court ruled in favor of the health club—holding that the waiver and release was not ambiguous because it clearly stated that the health club members were responsible for personal injuries that were sustained at the club. The trial court also recognized the “positive social value” in allowing health clubs to limit their liability in respect of patrons who wish to assume the risk of participation in activities that could cause an injury.

On appeal, the Appellate Division affirmed the trial court’s decision granting summary judgment in favor of the health club. The Appellate Division found that the trial court’s decision was sound because plaintiff’s injury was the result of exercising with weights and that there was an inherent risk of being seriously injured while engaging in strenuous physical exercise.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.

Put Me in Coach – But Only on a Regulation Field (NY)

In Legac v South Glens Falls Cent. Sch. Dist, the Third Department recently held that the assumption of risk doctrine can apply even in atypical sporting situations.

In March of 2015, 5 year-old Mathew Legac was struck in the face by a baseball while fielding ground balls during try-outs for his school’s junior varsity baseball team. Because of rain, the JV coach, defendant Edward Potter, held the multi-day tryouts in the high school’s gymnasium. Legac argued that because the tryouts were held indoors, as opposed to a normal baseball field, the school created an unusual and unsafe condition for students to play the sport. Defendants moved for summary judgment on the basis that Legac assumed the risk of being struck by a baseball during tryouts. The trial court found that plaintiffs raised a triable issue of fact, and denied summary judgment. Defendants appealed.

On appeal, the Third Department began by explaining the common law doctrine of the assumption of the risk. In New York, when a participant engages in a sport or recreational activity and is aware of the risks, he or she consents to the “commonly appreciated risks” that are inherent in the activity. By extension, the participant “negates any duty on the part of the defendant to safeguard him or her from th[ose] risk[s].” As baseball is a common activity with inherent risks, the Court’s focus was solely on whether Legac was sufficiently aware of those risks such that the doctrine would apply. While awareness of the risk is assessed on a case-by-case basis, taking the skill and experience of the participant into account, the Court explained that where the “risks of the activity are fully comprehended or perfectly obvious,” the consenting participant will be deemed to have assumed that risk.

Legac testified that he began playing baseball approximately ten years prior, had fielded multiple ground balls during that time, and was aware that baseballs commonly make unexpected hops on the ground.  Overall, it was uncontested that Legac was far from a rookie, despite his age. Accordingly, the Court focused on whether the conditions of the gymnasium, which differed from traditional baseball fields, changed conditions such that Legac’s experience did not help him appreciate the particular risks at issue. Legac argued that a smooth gymnasium floor allowed ground balls to maintain greater speeds than would be possible on grass. Moreover, Legac hired a “baseball expert” who opined that the school made the drill more unsafe by allowing the hitter – the coach – to use an aluminum bat to hit ground balls across the gymnasium, which was only 48 feet away from Legac. The expert explained that on a regulation field, the fielder closest to the batter (besides the catcher) is the pitcher, who stands 60’ 6” away. Accordingly, these unrealistic and unfamiliar conditions negated Legac’s baseball experience, and therefore made it impossible for him to appreciate and ultimately assume the risk.

A majority of the Court held that, although these particular conditions may have varied from Legac’s prior experience, Legac could still be deemed to assume the risk. Critically, Legac testified that he had the opportunity to observe other participants field ground balls just moments before he was called into the drill. Moreover, Legac had the opportunity to interact with ground balls during the first several days of the multi-day tryout. Accordingly, the Court reversed the trial court and held that Legac assumed the risk of injury and his complaint must be dismissed.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Sports Injuries – Some Risks are Still Assumed (NY)

One piece of common sense courts tend to follow is that people usually assume the risks inherent in the games they play.  Whether it’s a hockey player who might slip on the ice or a gymnast who might fall off the rings, people cannot expect to recover in a court of law just because they hurt themselves while playing a sport.  Liability attaches when a property owner fails to correct risks outside the scope of a given activity.

A recent First Department decision should provide a degree of comfort to property owners whose facilities host multiple sports.  In Egbebemwen v. Nerw York City Department of Education, the plaintiff was a 15 year old boy who injured himself on a wrestling mat after trying to dunk a basketball.  Though the mat was a few feet out of bounds, the plaintiff argued the defendant was negligent by leaving the mat so close to the court.

The First Department rejected this argument, and held that the defendant was entitled to summary judgment, because the plaintiff was aware of the mat, and that it posed a tripping hazard.  In other words, the risk was open and obvious.

On a personal note, this facts pattern reminds me of a similar situation when I was a junior at Regis High School.  While playing basketball, I sustained a high ankle sprain when my classmates and I neglected to move a small hockey goal from underneath the backboard in our lower gym.   Predictably, I landed awkwardly on the goal and badly sprained my ankle.  Adding insult to injury, I didn’t secure the rebound.  Ah, I can still hear the sympathetic cries of one of my classmates:  “Sub!  I’m in for Gibbons, he’s down!”  Men for Others, indeed.  (No, there was no insurance claim or lawsuit.  In fact, I think we were reprimanded for being careless and damaging the goal.  The good ol’ days.)

Despite this decision, property owners should still take care to properly maintain their facilities.  In Egbebemwen, the Court was careful to note that the Plaintiff had observed the dangerous conditions before.  While a plaintiff who is aware of risk may be barred from recovery by assuming the risk, there may have been a different outcome if a newcomer to the facility had fallen to the mat.      Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.


Gross Negligence By Any Other Name Would Still Be ??? (NJ)

In New Jersey, an adult can voluntarily agree to extinguish their right to pursue a negligence action by signing a wavier of liability.  The NJ Supreme Court effectively addressed this issue in a case that arose out of an injury in a spin class at a gym.  See Stelluti v. Casapenn Enterprises, LLC.  While upholding the validity of such a waiver, the Court limited its scope to ordinary negligence leaving open the potential for claims of gross negligence or statutory violations on public policy grounds.  Recently, the Supreme Court revisited the concept of a waiver of liability with a focus on what constitutes gross negligence.

In Steinberg v. Sahara Sam’s Oasis, LLC, the plaintiff signed a waiver of liability before riding on the FlowRider at the defendant water park. The FlowRider is a surfing simulator that the manufacturer has described as an “extreme sport and high risk activity.”  The plaintiff and ride operator disputed whether he was given instruction before attempting to ride the flowboard.  Within seconds of being released into the water, he fell head first with a resulting spinal cord injury leaving him an incomplete paraplegic.

The Court accepted that the waiver was valid and enforceable.  At issue was whether the plaintiff had sufficient proofs of gross negligence to warrant submission to a jury.  The motion judge and a divided appellate panel did not believe there was a triable issue.  The Supreme Court did.

The term “gross negligence” had not been defined by the Supreme Court and has historically been inconsistently applied.  On a continuum from ordinary negligence to gross negligence to recklessness to willful conduct to intentional act, gross negligence is just a higher degree of negligence.  The Court recognized it as “the failure to exercise slight care or diligence.”  In other words, “gross negligence is an indifference to another by failing to exercise even scant care or by thoughtless disregard of the consequences that may follow from an act or omission.”  However, it is a lesser standard than recklessness.

In reversing summary judgment granted to the waterpark, the Supreme Court found that when the facts were viewed most favorably to the plaintiff, a reasonable juror could find gross negligence based upon the “entire tableau” of allegations asserted by the plaintiff.  These included claims that the park failed to post updated manufacturer signage with more explicit warnings, failed to provide instruction as directed by the ride manufacturer, and failed to show the plaintiff a manufacturer produced video instruction.

While the Supreme Court has finally defined “gross negligence” – the definition provides little more guidance than the New Jersey Model Jury charge.  However, the Court has made clear that gross negligence does not involve the more extreme reckless standard and that it can be evaluated on the basis of cumulative factors.

For more information, contact Denise Fontana Ricci at