Category Archives: Sports Injuries

Fourth Department Gives Buffalo Bills First Win of the Season

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As we are less than one month away from the kickoff to the first week of the new NFL season – we report on the case of Wrobel v. Doe where plaintiff, a Miami Dolphins fan, was allegedly assaulted by Buffalo Bills fans in the stands at Ralph Wilson Stadium. Plaintiff alleges that during a Dolphins-Bills game (Bills won 19-14), he was sitting in his seat when plaintiff felt a punch to the head and he was attacked by three men. Plaintiff suffered an injury to his knee and he brought suit against (among numerous parties) the Buffalo Bills and the security company hired to police the stadium. The lower court dismissed the case against the defendants and the plaintiff appealed.

The Appellate Division Fourth Department ruled that the conduct of the Bills and the County was not a proximate cause of his injuries and that an independent act far removed from the allegedly negligent conduct of the Bills and the County, the assailants’ unprovoked criminal assault broke the causal nexus between such allegedly negligent conduct and plaintiff’s injury. The attack was extraordinary and not foreseeable or preventable in the normal course of events.

The Fourth Department further stated ““[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever rival football fans were gathered, surely an unreasonable burden.”

The Fourth Department affirmed the lower Court’s decision because the plaintiff could not prove that the defendants were on notice of any negligent behavior of the fans and the assault was unprovoked and defendants were not liable for the independent acts of the fans that caused plaintiff’s injury.

Thanks to Paul W. Vitale for his contribution to this post.

Fourth Department Gives Buffalo Bills First Win of the Season

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As we are less than one month away from the kickoff to the first week of the new NFL season – we report on the case of Wrobel v. Doe where plaintiff, a Miami Dolphins fan, was allegedly assaulted by Buffalo Bills fans in the stands at Ralph Wilson Stadium. Plaintiff alleges that during a Dolphins-Bills game (Bills won 19-14), he was sitting in his seat when plaintiff felt a punch to the head and he was attacked by three men. Plaintiff suffered an injury to his knee and he brought suit against (among numerous parties) the Buffalo Bills and the security company hired to police the stadium. The lower court dismissed the case against the defendants and the plaintiff appealed.

The Appellate Division Fourth Department ruled that the conduct of the Bills and the County was not a proximate cause of his injuries and that an independent act far removed from the allegedly negligent conduct of the Bills and the County, the assailants’ unprovoked criminal assault broke the causal nexus between such allegedly negligent conduct and plaintiff’s injury. The attack was extraordinary and not foreseeable or preventable in the normal course of events.

The Fourth Department further stated ““[i]t is difficult to understand what measures could have been undertaken to prevent plaintiff’s injury except presumably to have had a security officer posted at the precise location where the incident took place or wherever rival football fans were gathered, surely an unreasonable burden.”

The Fourth Department affirmed the lower Court’s decision because the plaintiff could not prove that the defendants were on notice of any negligent behavior of the fans and the assault was unprovoked and defendants were not liable for the independent acts of the fans that caused plaintiff’s injury.

Thanks to Paul W. Vitale for her contribution to this post.

Soccer Player Denied Recovery in “out of bounds” Injury (NY)

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Now that the World Cup is over, the in the U.S. focus shifts from football back to American football.  But soccer / football still finds its way into the news every now and again.

In O’Toole v Long Island Jr. Soccer, plaintiff alleged he was injured while retrieving a soccer ball that went out of bounds as his cleat got caught on a drainage grate near the field where he was playing. The Supreme Court granted the defendant’s motion for summary judgment under the theory of assumption of risk. Plaintiff appealed.

The Appellate Division, Second Department found that pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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.’ Although the grate was not part of the field of play,  the plaintiff admitted in his deposition testimony that in order to gain access to the field, he had to walk on the grate, and so, was aware of its presence.

The Court held defendant demonstrated that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from concealed, or unreasonably increased risks, and that the plaintiff assumed the risk of injury by voluntarily participating in a soccer game despite his knowledge that doing so could bring him into contact with an open and obvious grate near the field of play. The Appellate Division also determined the grate was NOT concealed or defective in any manner.

In opposition to the defendant’s motion, the plaintiffs merely offered speculative expert opinions and failed to raise a triable issue of fact. The Second Department agreed with the lower Court’s decision and found defendant’s argument persuasive and affirmed summary judgment. When you call the sport soccer or football, well, let’s say the plaintiff and counsel called it a day after the Second Department’s ruling.

Thanks to Paul Vitale for his contribution to this post.  Please email Vincent Terrasi with any questions.

No Foul Called Against City for Cracked Basketball Court (NY)

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In Philius v. City of New York, plaintiff alleged he was injured while playing basketball on an outdoor basketball court owned by the defendants New York City Housing Authority and the City of New York. Plaintiff tripped on a crack in the surface of the court. NYCHA moved for summary judgment arguing, among other points, that the plaintiff’s action was barred by the doctrine of primary assumption of risk. The Supreme Court denied NYCHA’s motion, and NYCHA appealed.

The Appellate Division, Second Department found that pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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.’ Although cracks on the court are not necessarily commonly appreciated risks, in support of its motion, NYCHA submitted, among other things, a transcript of the plaintiff’s testimony, as well as photographs of the subject court. The plaintiff, who was 19 years old at the time of the accident and an experienced basketball player, testified that he “grew [up] playing on [the subject] court,” and that he was aware of the presence of cracks in the surface of the court prior to his accident. The plaintiff also indicated that he was previously aware of the particular crack over which he tripped.

The Court held NYCHA demonstrated that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from concealed, or unreasonably increased risks, and that the plaintiff assumed the risk of injury by voluntarily participating in a basketball game on the outdoor court despite his knowledge that doing so could bring him into contact with an open and obvious crack in the playing surface.

In opposition, the plaintiff argued that he did not assume the risk of having his foot stuck in a crack when playing basketball.” The plaintiff submitted the affidavit of a licensed professional engineer, who opined that the cracked pavement constituted a longstanding defective condition in a very advanced state of disrepair. In reply, NYCHA argued that the prominent and visible nature of the cracked surface of the basketball court only supports its contention that the plaintiff voluntarily assumed any risk of injury arising from the game. The Second Department found NYCHA’s argument persuasive and overturned the lower court’s decision and granted summary judgment for NYCHA.

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

Court Rejects Summary Judgment in Hockey Puck Suit (NY)

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In Smero v. City of Saratoga Springs, et. al., plaintiffs’ 10–year old daughter sustained injuries to her head when she was struck by an errant hockey puck that left the ice while she was watching a youth hockey practice at Vernon Rink in Saratoga County.

In their complaint, plaintiffs alleged that defendants failed to install proper safety netting or barriers in the area where the child was injured. After the death of a fan at a hockey game in 2002, the NHL required that all hockey arenas erect safety netting around the glass at both ends of the rink. The defendant moved for summary judgment on the assumption of risk doctrine, but the Supreme Court denied defendants’ motions for summary judgment.

The Appellate Division, Third Department affirmed the lower court decision and determined that the assumption of risk doctrine did not apply to these facts. Under the assumption of risk doctrine, consenting “[s]pectators and bystanders … assume risks associated with a sporting event or activity, even at times when they are not actively watching the event.” However, the Appellate Division held “notwithstanding a spectator’s assumption of risk, an owner or occupier of land remains under a duty to exercise reasonable care under the circumstances to prevent injury to those who are present.” In the context of hockey rinks, “the owner’s duty owed to spectators is discharged by providing screening around the area behind the hockey goals, where the danger of being struck by a puck is the greatest, as long as the screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire to view the game from behind such screening.”

The Appellate Division noted that at the time of the incident, two separate hockey practices were ongoing, and, to accommodate this, the hockey goals were set up in a cross-rink fashion to allow both practices to use the hockey rink at the same time. Thus, the goals were repositioned across the width of the ice rink instead of at the ends of the rink where they are normally situated. Plaintiff’s expert engineer opined that placement of the hockey goals in a cross-ice fashion on the sides of the rink and “directly in front of an area of the rink with a significant gap in the protective screening [ ] created the significant likelihood that a puck traveling at high velocity would leave the playing surface, placing spectators … in danger of injury.”

The Appellate Division held that the change in position of the goals and the possibility that pucks could more readily go into the stands from the changed position led to a question of fact to deny defendants’ motions for summary judgment.

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

Heads Up: Lacrosse Player Injured During Drill (NY)

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In Tauro v. Gait and Syracuse University, Plaintiff, a varsity womens’ lacrosse player at Syracuse University, was struck in the head with a lacrosse ball thrown by her coach , allegedly negligently.  Plaintiff was injured during a ground ball drill, and plaintiff said she was unprepared to receive the hard, overhand pass that struck her in the head.

Defendants moved to dismiss the complaint on the grounds that a waiver signed by plaintiff established a complete defense to the allegations, and that the complaint failed to state a cause of action because plaintiff assumed the risk of injury.

In the waiver, plaintiff agreed that she was “fully aware … that … participation [in lacrosse] involves risk of injury ….” She further acknowledged in the waiver that she accepted, and assumed all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others.

The trial court denied the summary judgment motion. The Appellate Division, Fourth Department, upheld the lower court’s decision because they ruled the defendant’s actions did not fall within the assumption of the risk doctrine for sports. The court held that defendant’s actions were totally inconsistent with the drill and as such, throwing the ball toward her head was grossly negligent and extremely reckless.  The  conditions caused by the defendants’ negligence were unique and created a dangerous condition over and above the usual dangers that are inherent in the activity. As such, the waiver signed by the plaintiff was not valid due to the gross negligence of the coach’s action.

Syracuse University’s Women’s Lacrosse Team is nationally ranked. Gary Gait, the defendant, is still the coach of the team.

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

Court Tackles Plaintiff’s Touch Football Lawsuit (NY)

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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)

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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)

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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)

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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.