Plaintiff Rides Again: Dude Ranch’s Motion for Summary Judgment Denied (NY)

In SARA W by HENNY W v Rocking Horse Ranch Corporation, plaintiffs commenced an action seeking to recover damages for injuries sustained by plaintiff, who was 16-years-old, when she fell from a horse while at defendant’s dude ranch. Defendant moved for summary judgment on the theory of assumption of the risk, but was denied by the lower court. Defendant appealed.

Under the doctrine of primary assumption of the risk, although “participants in the sporting activity of horseback riding assume commonly appreciated risks inherent in the activity, such as being kicked …, ‘[p]articipants will not be deemed to have assumed unreasonably increased risks’ ”

In support of its motion, defendant submitted the deposition testimonies of the infant and Robert Gilbert, a certified horse wrangler employed by defendant who assisted the infant, to show that it exercised care in ensuring that the horse riding conditions were as safe as they appeared to be. Gilbert’s testimony established that the infant was provided with an appropriate horse for a beginner’s trail, helmets were required of infants participating in the ride, the infant was provided with instructions prior to the ride and a horse wrangler accompanied the riders during the trail ride and also assisted the riders when dismounting. Importantly, the infant herself testified that she was aware that there were risks involved in the activity, as she had been on horseback riding trails prior to the incident.

Plaintiff contended that defendant was negligent in helping her dismount the horse. The infant’s description of the incident differs from Gilbert’s description. Specifically, the infant testified that Gilbert moved away from her and towards the horse’s head to tame it and that it was this movement by Gilbert that caused the horse to move, leading to the infant’s fall.

The Appellate Division, Third Department agreed with lower court and upheld their decision finding a question of fact. The Appellate Division held that although defendant attempted to provide adequate assistance on dismount, there still remains a question of fact as to whether defendant’s response to the situation, in light of evidence that the infant was a novice and that the horse was jittery and jumpy, heightened the risk of her fall, thereby unreasonably increasing the risks of horseback riding.

As we highlighted some years ago reporting on Corcia v. Rocking Horse Ranch, there will be a question of fact whenever a plaintiff presents evidence that the defendant increased the risk at hand.

Thanks to Paul Vitale for his contribution to this post.

Skier’s Responsibility Act Bars Claim (PA)

A Pennsylvania court recently decided in Vu v. Ski Liberty Operating Corp., 2019 U.S. App. Lexis 4261 (3d Cir. Feb. 12, 2019) whether a ski resort was responsible for a skier’s injuries after they skied over the edge of a trail to avoid colliding with a snowboarder.

Plaintiff, Quan Vu, was skiing at Liberty Mountain when a snowboarder approached him and cut him off, causing Vu to veer toward the edge of he trail.  Vu skied over the edge and landed in a pile of rocks.  Vu suffered multiple injuries and sued the resort, alleging that his injuries were caused by his skiing over an unmarked artificial cliff at the slope’s edge created by the Defendants’ snowmaking and snow grooming practices.  In his complaint, Vu alleged that the defendants were negligent for failing to keep the slope free from unsafe conditions, warn plaintiff of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the rocks below.  Defendants moved for summary judgment arguing that plaintiff’s action was barred because skiing off trail is an inherent risk of downhill skiing.

The court decided that, under the Skier’s Responsibility Act, ski resorts have no duty to protect skiers from the inherent risks of the sport that are common, frequent, and expected.  Losing control and skiing off the side of a trail is an inherent risk of skiing and inherent risks need not be natural conditions.  Because plaintiff failed to identify any particular industry standard that defendant violated, defendants were properly granted summary judgment.

Injured Snow Tuber Successfully Maneuvers through Summary Judgment Motions (NY)

In Jamjyan v. West Mountain Ski Club, Inc., the plaintiff was injured at a snow tubing park. She commenced this personal injury action against the defendants, the owners and operators of the tubing park, alleging that a park attendant caused the accident by prematurely unhooking the tow rope from the snow tube the plaintiff was sitting in while being towed to the top of the hill. The defendants moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of assumption of risk. The Supreme Court denied the motion, and the defendants appealed.

The Appellate Division, Second Department reviewed the facts and concurred with the lower court’s decision in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity.

Assumption of risk is not an absolute defense, but a measure of a defendant’s duty of care. Here, in opposition to the defendants’ prima facie showing, the plaintiff raised a triable issue of fact as to whether the allegedly unexpected action of the tubing park attendant, in prematurely unhooking the plaintiff’s snow tube from the tow line, created a dangerous condition over and above the usual dangers that are inherent in the sport of snow tubing.

Plaintiff also provided an affidavit from an expert stating that the defendants’ actions were not reasonable and would foresee a dangerous condition.

Thanks to Paul Vitale for his contribution to this post.

Plaintiff’s Suit against Golf Course Not Up to Par (NJ)

Plaintiff, a New Jersey resident, visited Greenbrier golf course in West Virginia after seeing advertisements during golf events broadcast on national network television  and in nationally circulated golf magazines. While staying at Greenbrier, plaintiff slipped and fell on the golf course, suffering significant injuries. He treated for his injuries in New Jersey and New York City.

Plaintiff sued Greenbrier in New Jersey, and Greenbrier subsequently moved to dismiss based on lack of jurisdiction. During discovery, Greenbrier asserted it had no direct advertisements on any New Jersey television stations or in any New Jersey magazines. Its advertisements were limited to nationally televised media sources, national golf magazines, and social media pages. Greenbrier’s only direct contact with New Jersey was through letters and e-mails sent to New Jersey residents who had previously stayed at Greenbrier.

Following discovery exchange, Greenbrier renewed its motion to dismiss for lack of jurisdiction in New Jersey. The trial court, upon reviewing Greenbrier’s position, granted the motion and dismissed plaintiff’s claim because Greenbrier did not have any direct contact with New Jersey, and there was no evidence of the minimum contacts required from Greenbrier to permit New Jersey Courts to exercise jurisdiction over the golf course located in West Virginia.

Plaintiff filed a motion for reconsideration, arguing general jurisdiction, rather than specific jurisdiction, permitted their claims against Greenbrier in New Jersey courts. Even with the change in plaintiff’s legal position, Delgatto v. Greenbrier that general jurisdiction required systematic and continuous activity in New Jersey, and plaintiff failed to demonstrate such activity.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Hockey Player Assumed Risk of Injury in Fight (NY)

Rodney Dangerfield once joked:  “I went to a fight the other night, and a hockey game broke out.”  But unlike Rodney, law and common sense received plenty of respect in Falcaro v American Skating Ctrs., LLC (2018 NY Slip Op 08469).

There, a hockey player was injured during an in-game fight during his amatuer league game, after a referee had pulled him off the pile.  In his lawsuit against the arena and others, the plaintiff claimed it was customary for fights to stop when a referee became involved.  Nevertheless, he kept on fighting and was injured.

Recognizing that a sports participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport and generally flow from such participation,” the court granted the defendants’ motion for summary judgment.  According to the court, the risk of involving oneself in an ongoing fight were inherent in the risks of ice hockey and “perfectly obvious.”

The trial court actually denied the defendants’ summary judgment motion, but on appeal, the 2nd Dept. reversed, citing the primary assumption of risk doctrine.  So instead of a verdict in his favor, the plaintiff will have to settle for a 5-minute major.  Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.




Second Department Limits Assumption of Risk Doctrine in Football Injury (NY)

In M.P. v. Mineola Union Free School District, the Second Department reversed a lower court decision granting summary judgment to the defendant. Plaintiff was a nine year old student who was playing touch football at recess and was injured when, going for a catch, he crashed into playground equipment.

The defendants argued that the infant plaintiff assumed the risk of playing football on a field adjacent to the playground equipment and that any negligent supervision was not the proximate cause of his injuries.  Defendant cited to plaintiff’s testimony that he plays in the area all the time at recess despite warnings to stay away from the school recess monitors.

The Second Department overturned the dismissal of the suit, because the school district failed to meet its burden in proving inherent risk, and failed to establish, prima facie, that its alleged negligent supervision in permitting the students to play football near the playground did not “create[ ] a dangerous condition over and above the usual dangers that are inherent in the sport.”

The Second Department ruled despite testimony from the plaintiff that he and his friends routinely disregarded the boundaries set by school employees for the playing area, and would play outside the designated boundaries on a portion of the field that was on the edge of an adjacent playground.

The Second Department also noted that plaintiff’s age (9 years old) was too young to “appreciate the risks involved” in playing  touch football.   We suspect there were recess monitors in the schoolyard — possibly volunteers — who “let it slide” when they saw the children playing football near the equipment.

If we might editorialize for a moment, this seems to us like a case where the “call on the field” was correct, and the appellate court opted to hold the school district to an unreasonably high standard.  Thanks to Paul Vitale for his contribution to this post.  Please email Brian Gibbons with any questions.

Danger at the Ballfield – Fan’s Fatal Fall Leads to Lawsuit

On August 29, 2015, the Yankees were up 2-0 against the Braves when Alex Rodriguez was called to pinch hit.  Greg “Ace” Murrey, a 60-year old insurance agent, stood up with many fans to heckle the Bronx Bomber when he lost balance and toppled over the 30” railing to the lower deck.  He was transported to Grady Memorial Hospital and pronounced dead on arrival. Murrey’s fatal fall, the third to befell Turner Field since 2008 (although the 2013 incident was ruled a suicide) has spurred a lawsuit calling into question the appropriate height of guardrails.

According to the 1927 building code, railing heights were required to be a minimum of 26”.  Safety experts now argue that fans are bigger and more overzealous than they were 90 years ago, as such, these outdated safety recommendations need to reflect the changing landscape.  The Braves’ new stadium has 36” railings, but these plans were already in effect prior to Murrey’s fall.  A person’s center of gravity is typically about 39” high and OSHA research dating back to 1976 determined that a 42” railing would be above the center of gravity for 95% of adults.  The problem is compromising railing height with line of sight as fans won’t want to sit in the front row if the guardrail obstructs their view of the game.

Hall of Fame pitcher and president of the Texas Rangers, Nolan Ryan, appeared for a deposition in the Murrey lawsuit, based on remedial actions taken by the Texas Rangers for a similar problem.  Texas spent $1.1M in 2011 to raise their guardrails to 42” after a fan fatality.    In 2010, after the Texas fatality, Turner Field security sent an e-mail to the Braves’ VP of stadium operations who replied, “I hope our specs are not similar to theirs.”  The Texas guardrails were actually half an inch higher than the Braves’.

It is important to remember that the medical examiner found Murrey hyperventilated when he stood, causing his loss of balance.  Additionally, his blood alcohol level was a .104.  But his death comes in a wake of fan related injuries spurring a movement to increase fan safety.  In 2010 at Turner Field, a 6-year old girl sitting behind the Braves dugout was hit in the head by a foul ball, fracturing her skull in 30 places and causing traumatic brain injury.  That case was settled for an undisclosed amount, but baseball Commissioner, Rob Manfred, recommended all teams extend the netting behind home plate to either the near ends of the dugouts, or to any seat within 70’ of the batter’s box which is what all ballparks in Japan do.  The Murrey lawsuit seeks substantive change in railing heights, but also an undisclosed monetary amount for the value of his life.  It is unclear the path this lawsuit will take, but the Braves lost that game, 3-1.

And if I might editorialize for a moment, having been to hundreds of baseball games over the years, I’m always struck by the T-shirt cannon, which sends rolled-up T-shirts into the stands, some of which fall just short of the upper deck railings.  It’s incredibly lucky that no fan has fallen while reaching too far for a T-shirt.

A link to the Atlanta Journal-Constitution is here:

Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.


Obscured Open and Obvious Condition May Be a Trap for the Unwary (NY)

Plaintiff tripped and fell on a “hump” on a baseball field in the Town of Smithtown and injured himself as he was attempting to move through the entrance of the field. This “hump” was caused by the Town’s installation of a drain, which was covered with asphalt. This hump extended to the area between the players’ benches and the entrance to the field on the third base side.

Plaintiff sued the Town of Smithtown in Suffolk County Supreme Court. Smithtown moved for summary judgment, contending that the condition of the hump was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiff appealed.

In Dillon v Town of Smithtown, the Appellate Division confirmed the duty of landowner is to maintain its premises in a reasonably safe condition.  And the Appellate Division confirmed that an exception to this duty exists when there is an open and obvious, and not inherently dangerous condition.  Further expanding on the “open and obvious” principle, the Appellate Division held that a condition that is ordinarily apparent to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Applying that distinction to the facts of this case, the appellate court found that the Town failed to prove that the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident.  In reversing the Supreme Court’s summary judgment decision the court highlighted plaintiff’s testimony that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump.

The case highlights the reality that certain defenses, such as the open and obvious defense and other issues of fact need to be resolved by appellate courts, rather than the trial courts. Litigators presented with such issues should be prepared at an early stage to be mindful of the possibility of appellate practice.

Thanks to George Parpas for his contribution to this post.

Skiers Assume Risks — But Not All Risks (NY)

A lawsuit was brought on behalf of a girl who allegedly broke her leg in a skiing accident at Catamount Ski Resort, located in upstate New York on the Massachusetts border. Apparently, plaintiff ran into an unpadded pole that was located in an area where skiing was permitted.

After discovery, the ski resort moved for summary judgment arguing that the plaintiff assumed the risks associated with skiing. Justice Manuel Mendez, a judge sitting on the Supreme Court in New York County granted Catamount’s motion, because plaintiff “assumed the risks” associated with skiing. Plaintiff appealed to the Appellate Division, First Department.

On appeal, the Appellate Division, First Department heard all arguments in regards to the case. When both sides rested, the court decided that the plaintiff did not assume the risk of hitting an unpadded pole in a skiing area and that it was an increased risk, not contemplated by the General Obligations Law section that barred such suits.  The panel stated that because of the location of the unpadded pole, it could be determined that the defendant failed to keep their property in a reasonably safe condition.

Thanks to March Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

Skier Maneuvers Through Summary Judgment Minefield (NY)

In ­­­­­­­­­­­Sopkovich v. Smith, Plaintiff commenced this action seeking damages for injuries sustained when he and defendant, a snowboarder, collided on a ski trail. Defendant moved for summary judgment under the theory of assumption of the risk and that defendant did not engage in any “reckless, intentional, or other risk-enhancing conduct not inherent in the activity.” The lower court dismissed this case and the plaintiff appealed.

The Appellate Division, Fourth Department reviewed the facts and ruled the lower court erred in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity. Both plaintiff and defendant were veteran skiers/snowboarders.

Plaintiff testified that he was “slow[ly]” skiing down a beginner trail when defendant merged onto that trail from an intermediate trail and impacted plaintiff from the left.” By contrast, defendant, an “advanced” snowboarder who was familiar with the trails, testified that he had already safely merged onto the beginner trail at an “average” or “normal” speed, was further down the beginner trail than plaintiff and was “very close to a complete stop” at the time of the collision, having observed plaintiff “going fast” “down the hill in a straight line.”

Plaintiff submitted an affidavit from an emergency room physician who was also an 11–year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff’s injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff’s] left side and back was immense” and that plaintiff’s injuries were “not consistent with [defendant’s] deposition testimony” that he had come to or nearly come to a complete stop. The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff.

The Appellate Division concluded that plaintiffs raised triable issues of fact whether defendant engaged in reckless conduct. As the record established that the collision was exceedingly violent there is “at least a question of fact … whether … defendant’s speed in the vicinity and overall conduct was reckless.”  As such, the expert testimony contradicted the defendant, thus creating a question of fact.  A fine maneuver by the plaintiff and a reminder that summary judgment will rarely be upheld if there is credible expert testimony sufficient to take the case before a jury.

Thanks to Paul Vitale for his contribution to this post.