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 .

Court Allows Skiing Accident Case to Slide Ahead (NY)

New York courts typically find that participants in dangerous sports consent to the inherent risks and cannot recover for injuries they sustain.  But an exception is where the conduct causing the injury is so “reckless, intentional, or negligent” that it creates an “unreasonably increased risk.”

In Horowitz v. Chen, the plaintiff was at the base of a beginner slope, near a marked safety zone, when the defendant hit her going 20 to 30 kilometer per hour (12 to 18 miles per hour), and plaintiff sustained serious injuries.

The defendant moved for summary judgment on the theory that skiing has inherent risks, which the trial court denied.  On appeal, the Court agreed that there were triable issues of fact as to whether the defendant had engaged in reckless conduct by skiing into a crowded area at the base of a beginner’s slope. Furthermore, in view of the significant injuries sustained by the plaintiff, an issue was raised as to whether the speed at which defendant was skiing was reckless under the circumstances.

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

First Department Follows the Second Department’s Lead in Dismissing Personal Injury Claims Based on Assumption of Risk

Recently, the Second Department dismissed a plaintiff’s claim for personal injuries sustained while playing basketball at school. See, WCM Blawg, Of Interest, “Court Swats Away Basketball Injury Claims Under Assumption of Risk Doctrine” March 3, 2016.

Just a week later, the First Department ruled similarly in Blumenthal v. Bronx Equestrian Ctr., and reversed a Supreme Court, Bronx County, decision which denied summary judgment to the defendants.

In Blumenthal, plaintiff was thrown from a horse during a recreational ride at the defendant park owned by The City of New York, and through a stable operated by the Bronx Equestrian Center. The defendants moved for summary judgment based on the assumption of risk doctrine.

The Court found that “[t]here is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks.” Id. Furthermore, the Court found that “[t]he risk of a horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport or horseback riding”. Id.

The Court then addressed the claims against the City of New York which were based in premises liability. Plaintiff claimed that there were defects in the birdle path on which she was riding that contributed to the accident. The Court found that the City did not owe plaintiff a duty of care as the agreement between the City and the defendant stable placed that duty onto the stable. Finally, the Court found that there is no provisions of the agreement between the defendant City and the defendant stable that would allow plaintiff to be a third-party beneficiary to the terms of the contract.

This decision shows that the assumption of risk defense will release a landowner or facilities operator from liability for any injury resulting from a voluntary recreational activity, despite (unsubstantiated) claims that defective conditions contributed to the incident.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.


Court Swats Away Basketball Injury Claims Under Assumption of Risk Doctrine (NY)

Assumption of risk for a schoolyard sport was recently addressed by a New York court in Altagracia v. Harrison Cent. Sch. Dist.  The student plaintiff filed a personal injury lawsuit against his school for injuries sustained while playing basketball on an outdoor court on school grounds during his lunch recess. The injury occurred when the back of his head struck the pole supporting the basketball backboard, causing him to fall to the ground.

Plaintiff’s complaint alleged causes of action under a theory of negligent supervision and premises liability. One of the defenses asserted by the school was the doctrine of assumption of risk, which is a common defense to sports related injury lawsuits.

After both parties filed motions for summary judgment, the Westchester County Supreme Court dismissed the plaintiff’s negligent supervision claim, but allowed the cause of action alleging premises liability to proceed to trial.

The Appellate Division affirmed most of the ruling, but found that the Supreme Court should have also dismissed the premises liability claim. In discussing the law, the Appellate Division analyzed the assumption to risk defense, which “applies where a consenting participant in a sporting activity is aware of the risks [inherent in the activity]; has an appreciation of the nature of the risks; and voluntarily assumes the risks.” The decision held that if the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.

The Court also noted that an assumption of risk defense has limits. That is, an assumption of risk defense will not serve as a bar to liability if the risk is “unassumed, concealed, or unreasonably increased.”

But ultimately, the Court found that the school demonstrated that the subject pole was open and apparent, that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard, that the defendant did nothing to conceal or unreasonably increase the risk, and that the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

New Year’s Resolution: Read The Contract Before Signing (PA)

As people are cramming into gyms around the country trying to keep their New Year’s resolutions, it is a good time to remember the importance of carefully reading all the contracts we are presented with in our daily lives. In Hinkal v. Pardoe & Gold’s Gym, Inc. et al., the Pennsylvania Superior Court dealt with whether the agreement signed by the plaintiff when she became a member of Gold’s Gym released the defendants from liability.

Melinda Hinkal decided she wanted to join a gym to lose weight. After a six day the trial period, Hinkal decided to join the gym and signed a membership agreement. The agreement contained a section on the back of the form entitled “Waiver of Liability; Assumption of the Risk.” The section stated that the member recognized that working out at a gym involves “inherent risk of personal injury… and Member voluntarily assume all risk of personal injury to Member and waives any and all claims or actions” against the gym and its employees. Hinkal claimed that she was handed a “sheaf of papers” and was told to sign it. She claimed she never read it.

A few weeks later, she ruptured a disc in her in her neck while using an assisted pull-up machine under the supervision of defendant, Pardoe, her personal trainer.  Hinkal sued Pardoe for negligent instruction and supervision and the gym, under a theory of respondeat superior. The trial court granted the defendant’s motion for summary judgment, and dismissed the complaint. Hinkal then appealed and asked the superior court to set aside the membership agreement’s waiver clause, arguing that it was unreasonable for her to read this clause as it was inconspicuously placed on the back of the waiver.

The Superior Court addressed the standards for upholding liability waivers: whether the waiver infringes on public policy, and whether the agreement is a “contract of adhesion,” meaning that each party must have free bargaining abilities.

Hinkal argued that the membership agreement was comparable to liability release provisions that were printed on the back of ski tickets, which the Court previously struck down. The Court differentiated the signed membership agreement from the unsigned clause attached to the back of an amusement ticket, noting that there was no proof on the ticket that there was ever a meeting of the minds agreeing to the release. The membership agreement, on the other hand, was signed right under an unambiguous directive not to sign the agreement until reading both sides. The Court found that the membership agreement clearly expressed a straightforward statement that there was a meeting of the minds between the contracting parties.

As the Court aptly quoted, “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract first.”

Thanks to Jim Stinsman for his contribution to this post and please write to Mike Bono for more information.