A New York state appeals court has reversed a lower court and found that a student athlete did not assume the risk of injury when she participated in a soccer team practice that was held in a school hallway because it was raining outside. Thus, the court denied the school district’s motion to dismiss.
The student athlete was 12-years-old and a member of the girls’ soccer team at Saxton Middle School in the Patchogue Medford School District of the Town of Brookhaven, Suffolk County, New York.
On the date of the accident, the soccer practice was held indoors because it was raining outside. Among other activities, the coach of the soccer team paired up students to run a sprint against each other in a school hallway, which measured approximately 150 feet in length. The coach determined that the finish line would be a space past an open set of double doors; the area between the double doors was narrower than the hallway. Approximately 9-to-10 feet beyond the double doors, directly ahead of the racing path, was a hard wall.
The girl testified that the team had not held practice in the hallway before, that she had never raced down that hallway, and that she was in the first pair to sprint. According to the infant, the coach told the students that the loser of the race would have to run laps up and down stairs. She sprinted down the hallway at full speed, tried to slow down at the unmarked finish line between the double doors, put her arms up to brace herself, but was unable to stop, causing her face to strike the wall.
The girl’s father sued on her behalf, alleging, among other things, that the school district failed to provide adequate supervision and was negligent in failing to exercise reasonable care to protect the infant from injuries resulting from unreasonably increased risks.
The defendant moved for summary judgment, citing the applicability of the doctrine of primary assumption of risk. The trial court granted the motion, leading to the appeal.
The appeals court noted 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 (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Philippou v Baldwin Union Free Sch. Dist., 105 AD3d 928, 929, 963 N.Y.S.2d 701; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 677, 961 N.Y.S.2d 178; Alqurashi v Party of Four, Inc., 89 AD3d 1047, 1047, 934 N.Y.S.2d 214).
“Furthermore, in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants’ negligence are unique and created a dangerous condition over and above the usual dangers that are inherent in the sport (Morgan v State of New York, 90 NY2d at 485; see Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d at 678).”
The panel went on to note that the defendant “failed to establish, prima facie, that by voluntarily participating as a member of her school soccer team, the infant consented to the risks of racing in the school hallway. In other words, the defendant did not establish that the commonly appreciated risks which are inherent in and arise out of the nature of soccer generally and flow from such participation on the soccer team included the risks of running into a wall while racing in the school hallway (see Morgan v State of New York, 90 NY2d at 484; see Philippou v Baldwin Union Free Sch. Dist., 105 AD3d at 929; Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d at 677; Alqurashi v Party of Four, Inc., 89 AD3d at 1047). Indeed, the hallway was not a designated athletic venue, and the infant testified that the team had not held practice in the hallway before. As a result, the defendant failed to establish prima facie that the doctrine of primary assumption of risk applies so as to relieve it of a legal duty to the infant, and thereby negate an essential element of the plaintiff’s negligence cause of action against it (see Cotty v Town of Southampton, 64 AD3d at 254; Prosser & Keeton, Torts § 68 at 480-481 [5th ed 1984]).”
In addition, the appeals court noted that the defendant “also failed to establish, prima facie, that, taking into account the infant’s age, skill, and her inexperience sprinting in the subject hallway, that its employee did not unreasonably increase the inherent risks of the activity by, among other things, setting the finish line too close to the wall (see Morales v Beacon City School Dist., 44 AD3d 724, 726, 843 N.Y.S.2d 646; Ross v New York Quarterly Mtg. of Religious Socy. of Friends, 32 AD3d 251, 252, 819 N.Y.S.2d 749; Kane v North Colonie Cent. School Dist., 273 AD2d 526, 528, 708 N.Y.S.2d 203).
“Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion should have been denied regardless of the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).”
Richard Braile, Jr., etc., v. Patchogue Medford School District of Town of Brookhaven, Suffolk County, New York; Supreme Court of New York, Appellate Division, Second Department; 2014 N.Y. App. Div. LEXIS 8875; 2014 NY Slip Op 08949; 12/24/14
Attorneys of Record: (for appellant) Kujawski & Kujawski, Deer Park, N.Y. (Jennifer A. Spellman of counsel). (for respondent) Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel).
