A New York state trial court has refused to grant a motion for summary judgment filed by a school district and a coach in a case in which the parents of a middle school football player sued the two defendants over an injury their son suffered when an opposing player who was wearing metal cleats stepped on his hand.
The judge held specifically that a question of fact remained about whether the William Floyd Union Free School District and Coach Sean Baumiller did enough to prevent student athletes participating on the William Floyd Middle School football team from wearing the banned cleats.
At the same time, the court granted summary judgment to the plaintiff’s own school district, which was also a named defendant, finding that “there is no evidence that (Sachem Central School District) had a duty to ensure that players on the opposing football team complied with the NYSPHSAA rules, including those regarding footwear.”
The incident in question occurred on October 16, 2008, when Salvatore Giannino, or Sal, was playing in a football game, which pitted Sagamore Middle School against WFMS. Prior to the start of the game, no one physically checked the players’ footwear. However, the officials addressed both teams about wearing rubber cleats. About midway through the second quarter of the game, Sal was playing defense when William Floyd ran a running play. Sal was blocked by an offensive lineman and knocked to the ground. While laying on the ground on his stomach, with his hands outstretched and palms down, another William Floyd player stepped on his left hand. Sal left the game and was taken by ambulance to Brookhaven Hospital. “A couple of days later, assistant coach Robert Murphy told him that a William Floyd player was kicked out of the game for wearing metal cleats,” wrote the court.
In his deposition, Murphy noted that the rules are set forth by Section XI of the New York State Public High School Athletic Association (NYSPHSAA) and include an equipment regulation, which specifies that only “one-piece molded rubber” cleats are permitted in middle school play.
The head coach of the opposing team stated that the footwear rules “are explained at the team’s first practice and throughout the season, but that no information is sent to the parents of the players.” The court noted that at the October 16, 2008 game, “an official came over to him and told him that a William Floyd player was wearing illegal cleats.”
After the incident the plaintiffs sued, alleging that the defendants – the school districts and the opposing head coach — were liable for Sal’s injuries based on their negligence in failing to enforce the official rules for middle school football.
William Floyd and the coach moved for summary judgment, claiming Sal voluntarily assumed the risk of playing football, and that they owed no duty to Sal as a matter of law.
In its analysis, the court wrote that “a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein. See Morgan v. State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 NYS2d 421 (1997); Paone v. County of Suffolk, 251 AD2d 563,674 NYS2d 761 (2d Dept 1998). The assumption of risk doctrine includes the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation. See Rosenbaum v. Bayis Ne’Emon Inc., 32 A.D.3d 534, 820 N.Y.S.2d 326 (2d Dept 2006); Colucci v. Nansen Park, Inc., 226 AD2d 336, 640 NYS2d 578 (2d Dept 1996).
Although awareness of the risks involved in a particular sport is an essential element of the primary assumption of risk doctrine, it is not necessary that the injured plaintiff have foreseen the exact manner in which his or her injury occurred. Maddox v. City of New York, 66 NY2d 270, 487 N.E.2d 553, 496 NYS2d 726 (1985). All that is required is an awareness of the injury-causing potential of the mechanism from which the injury results. Id. In addition, the plaintiff’s awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff. See Id; Gahan v. Mineola Union Free School Dist., 241 AD2d 439, 660 NYS2d 144 (2d Dept 1997). Moreover, a defendant seeking summary judgment on the ground of primary assumption of risk bears no greater burden than the establishment of the defense, and need not establish its own exercise of reasonable care. Maddox v. City of New York, 66 NY2d 270 (1985).
“Here, William Floyd has established its entitlement to summary judgment, and the application of the doctrine of primary assumption of the risk. It is clear that this is a sporting event with a significant risk of injury. Although Sal had not played middle school football before entering the eighth grade, he had attended numerous team practices, and he had played in approximately four football games before he was injured. The risk of being stepped on by another player is inherent in the game of football. See Morgan v. State of New York, 90 NY2d 471 (1997).
On the other hand, the court noted that “assumption of the risk is not an absolute defense. (S) Schools are still obligated to exercise ordinary reasonable care to protect students from unassumed, concealed or unreasonably increased risks. Id; Benitez v. New York City Bd. of Educ., 73 NY2d 650, 541 N.E.2d 29, 543 NYS2d 29 (1989). Likewise, participants in interscholastic sports may not be held to have consented to injurious acts from other athletes which are reckless or intentional. Benitez v. New York City Bd. of Educ., 73 NY2d 650 (1989); Turcotte v Fell, supra). — where is this cite above?
“The plaintiffs have submitted evidence establishing that the NYSPHSAA rule existed in order to ensure that middle school football players were afforded a greater measure of safety than their high school counterparts. Thus, they have raised an issue of fact as to whether the risks inherent in the sport of football were unreasonably increased such that the doctrine of assumption of risk does not bar Sal’s personal injury action. See Morgan v. State of New York, 90 NY2d 471 (1997); Benitez v. New York City Bd. of Educ., 73 NY2d 650 (1989). The question of whether Sal assumed the risk of being stepped on by a metal or plastic cleat should be determined by the trier of fact, and may not be determined as a matter of law. Anand v. Kapoor, 61 AD3d 787, 877 NYS2d 425 (2d Dept 2009); Jacobs v. Kent, 303 AD2d 1000, 757 NYS2d 408 (4th Dept 2003); Laboy v. Wallkill Cent. School Dist., 201 AD2d 780,607 NYS2d 746 (3d Dept 1994).” Accordingly, William Floyd and the coach’s motion for summary judgment dismissing the complaint were denied.
The court however, granted Sachem’s motion for summary judgment, finding there “is no evidence that Sachem had a duty to ensure that players on the opposing football team complied with the NYSPHSAA rules, including those regarding footwear. In addition, there is no evidence that any action or inaction on the part of Sachem was a substantial factor in causing Sal’s injury. Moreover, there is no evidence that Sachem breached its duty to exercise ordinary reasonable care to protect Sal from unassumed, concealed or unreasonably increased risks of playing football on October 16, 2008. Morgan v. State, 90 NY2d 471 (1997); Benitez v. New York City Bd. of Educ., 73 NY2d 650 (1989).
Salvatore Giannino, an infant by his father and natural guardian, Joseph Giannino, and Joseph Giannino v. Sachem Central School District et al.; S.Ct.N.Y., Suffolk Co.; INDEX NO. 10-313, 10-313, 2011 NY Slip Op 32241U; 2011 N.Y. Misc. LEXIS 4088; 8/15/11.
Attorneys of Record: (for plaintiffs) SIBEN & FERBER, Hauppauge, New York. (for Sachem CSD, Defendant) DONOHUE, MCGAHAN, CATALANO, et al., Jericho, New York. (for William Floyd School, Defendants) CONGDON, FLAHERTY, O’CALLAGHAN, et al., Uniondale, New York.
