A New York state appeals court has affirmed the ruling of a trial court, dismissing the claim of a security guard, who sued the Buffalo Bills when two players collided with him as they were leaving the field at Ralph Wilson Stadium after a football game.
In so ruling, the court agreed with the trial court that the plaintiff’s “contention that he was under an inherent compulsion to assume the risk” lacked merit.
The incident occurred on November 13, 2005 when plaintiff William Austin was guarding a tunnel entrance behind one of the end zones. After the collision, he allegedly suffered injuries to his knee and ankle.
Austin sued. Then the Bills moved for summary judgment, arguing that Austin assumed the risk of injury. The Supreme Court, Niagara County agreed and entered judgment for the Bills on March 1, 2011. The plaintiff appealed, maintaining that “his assignment as a guard carried an inherent compulsion to assume the risk of injury, and was not a matter of free will.
“The court properly determined that plaintiff assumed the risk of his injury. Where, as here, the plaintiff fully comprehended the risks or the risks are ‘perfectly obvious, [then the] plaintiff has consented to them and [the] defendant has performed its duty’ (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421, quoting Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49; see Bereswill v National Basketball Assn., 279 AD2d 292, 293, 719 N.Y.S.2d 231; Cannavale v City of New York, 257 AD2d 462, 462-463, 683 N.Y.S.2d 528).
“Plaintiff’s contention that he was under an inherent compulsion to assume the risk is raised for the first time on appeal and thus is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985, 609 N.Y.S.2d 745). In any event, that contention is without merit (see generally Benitez v New York City Bd. of Educ., 73 NY2d 650, 658-659, 541 N.E.2d 29, 543 N.Y.S.2d 29).”
William D. Austin v, Buffalo Bills, INC.; S.Ct.N.Y., App. Div., 4th Dept.;
345 CA 11-01310, 2012 N.Y. App. Div. LEXIS 1939; 2012 NY Slip Op 1981; 3/16/12
Attorneys of record: (for plaintiff) Chiacchia & Fleming, LLP, Hamburg (Andrew P. Fleming of counsel). (for defendant) Walsh, Roberts & Grace, Buffalo (Keith N. Bond of counsel)
