Liubov Andriienko v. Compass Group USA, Inc NYLJ – July 12, 2019
The Second Department recently reversed a trial Court’s summary judgment decision that it had decided in the defendant’s favor.
Plaintiff, “an experienced skater” was skating at defendant’s ice rink when she claimed an “unruly skater” pushed her down. Allegedly, the same skater had caused other skaters to fall.
Voluntary participants in a sport or recreational activity “may be held to have consented, by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation”. (Turcotte v. Fell, 68 N.Y.2d 432, 439; see Morgan v. State of New York, 90 N.Y.2d 471, 484). Although collisions between skaters are a common occurrence and are an inherent risk in the sport of ice skating (see Bleyer v. Recreational Mgt. Serv. Corp., 289 A.D.2d 519, 520; Vega v. County of Westchester, 282 A.D.2d 738), participants “do not consent to acts which are reckless or intentional” Turcotte v. Fell, 68 N.Y.2d at 439), or to any “unassumed, concealed or unreasonably increased risks”. Benitez v. New York City Bd. Of Educ., 73 N.Y.2d 650, 658; see Morgan v. State of New York, 90 N.Y.S2d at 485.
When a Court confronts a situation where the allegations consists of reckless behavior “over and above” the usual dangers inherent to skating, the focus shifts to notice. Specifically, in considering whether the ice rink is negligent, the issue turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision. Fader v. Town of Oyster Bay, 113 A.D.3d 725, 726; see Laurent v. Town of Oyster Bay, 163 A.D.3d 544, 545. “the duration and nature of the allegedly reckless conduct are factors that bear on this issue”. Fader v. Town of Oyster Bay, 113 A.D.3d at 726; see Winkler v. County of Nassau, 56 A.D.3d 550, 550-551).
The Court found that the defendants did not establish their prima facie entitlement to “judgment as a matter of law”. For instance, they did not establish the subject “sudden collision” was not one that could not have been anticipated. Plaintiff’s testimony, as submitted by the defendants, precluded application of the assumption of risk doctrine because “two other skaters has been pushing each other, spinning and skating against the flow of other skaters to fall before the plaintiff was injured”. The defendants’ affidavits were also deemed “conclusory” and insufficient for a number of reasons, e.g., no personal knowledge, no supporting documents, and no identification of the source of their conclusions.
Due to defendants’ failure to buttress their position, their efforts were found to be insufficient warranting a reversal of the lower Court’s decision.