A New York state appeals court has reversed a trial court’s decision, and effectively dismissed the claim of an amateur hockey player, who was injured in a fight and sued the facility where the hockey game took place, as well as a referee. In so ruling the panel of judges cited the doctrine of primary assumption of risk.
The plaintiff, Robert Falcaro, was participating in a hockey game at a facility owned by defendants American Skating Centers, LLC, and American Skating Entertainment Centers, LLC when a fight broke out between multiple players from both teams. Falcaro was injured when, as he was attempting to pull his teammate out of a pile of players, co-defendant Michael G. Floru, the referee, wrapped his arms around the plaintiff and pulled him backwards. This caused both the plaintiff and Floru to fall to the ice.
Falcaro sued, seeking to recover damages for personal injuries he alleges he sustained. The Supreme Court, Westchester County issued an order on June 29, 2017 in which it denied the defendants’ motion for summary judgment, and granted the plaintiff’s motion to impose sanctions upon the defendants for spoliation of evidence to the extent of directing an adverse inference charge at the time of trial.
The defendants appealed.
The appeals court noted that the plaintiff had played in this particular hockey league for 5 to 10 years and, although his teammates had been involved in fights, he had never personally been involved in one.
Floru testified at his deposition that league rules permit a referee to make physical contact with players for purposes of breaking up a fight. Floru testified that the plaintiff entered the fight by jumping on an opposing player’s back. Floru grabbed the plaintiff from behind under the plaintiff’s arms, and shouted “[i]t’s the referee,” which Floru testified is understood by the players as an unwritten rule to stop fighting. Instead of stopping, the plaintiff shouted expletives and threw his elbows backwards into Floru. In the struggle, the plaintiff fell and was injured.
The appeals court noted that “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’ (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49).
“[B]y freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk (Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127; see Turcotte v Fell, 68 NY2d at 439). If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty (see Bukowski v Clarkson Univ., 19 NY3d 353, 356, 971 N.E.2d 849, 948 N.Y.S.2d 568; Turcotte v Fell, 68 NY2d at 439). However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks (see Anand v Kapoor, 15 NY3d 946, 948, 942 N.E.2d 295, 917 N.Y.S.2d 86; Morgan v State of New York, 90 NY2d at 485).”
In the instant case, “the defendants established, prima facie, that the risks inherent in the sport of ice hockey, and in particular, involving oneself in an ongoing fight, were fully comprehended by the plaintiff and perfectly obvious. Further, the defendants established that the referees were permitted to make physical contact with players involved in a fight and, accepting the plaintiff’s version of the events as true, the plaintiff voluntarily engaged in physical contact with a player involved in the fight. Under these circumstances, the defendants established, prima facie, that the action was barred by the doctrine of primary assumption of the risk (see Hanson v Sewanhaka Cent. High Sch. Dist., 155 AD3d 702, 703, 64 N.Y.S.3d 303; Stach v Warwick Val. Cent. Sch. Dist., 106 AD3d 720, 721, 964 N.Y.S.2d 241; Adami v Warwick Val. Cent. Sch. Dist., 105 AD3d 982, 982, 963 N.Y.S.2d 385). In opposition, the plaintiff failed to raise a triable issue of fact,” added the appeals court.
“Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint, and denied, as academic, the plaintiff’s motion to impose sanctions upon the defendants for spoliation of evidence.”
Robert Falcaro v American Skating Centers, LLC, et al.; S.Ct.N.Y., App. Div., 2d Dept.; 2018 N.Y. App. Div. LEXIS 8466; 2018 NY Slip Op 08469; 12/12/18
Attorneys of Record: (for appellants) Lynch Schwab & Gasparini, PLLC, White Plains, NY (Louis U. Gasparini of counsel). (for respondent) Philip F. Menna, White Plains, NY
