A New York state trial court has denied a school district’s motion for summary judgment in a case in which the district was sued for negligence by a cheerleader, who suffered an injury while doing a stunt during varsity cheerleading practice.
In so ruling, the court determined that questions about whether there was enough supervision and safety mats was best left to a trier of fact.
The accident occurred on February 15, 2005 at Birch Lane Elementary School in Massapequa, New York. Plaintiff Carin Lomonico alleged in her complaint that while practicing a cheerleading stunt at a varsity cheerleading practice, she sustained injuries when she was struck in the head by another student which caused her to fall to the gymnasium floor.
The Plaintiff sued, alleging that the school district was negligent in that it failed to adequately supervise the cheerleading practice, failed to adequately instruct the students how to perform the cheerleading stunt and failed to provide protective matting and/or other padded covering on the hardwood floor of the gymnasium where the accident occurred.
The district moved for summary judgment alleging that the plaintiff cannot maintain any causes of action because (i) the plaintiff assumed the risk of participating in the interscholastic athletic event; (ii) negligent supervision was not a proximate cause of her injuries; and (iii) the plaintiff failed to set forth any evidence that the failure to have a mat at the area of the accident created a defective condition or had anything to do with the accident.
The relevant background, according to the court, centered on the extensive experience the plaintiff had had as a cheerleader as well as her experience in performing stunts. However, on the day in question, she was performing a new stunt for the first time. On the day of the accident, the cheerleading coach, Ms. Battistoni, was present in the gymnasium with the junior varsity and varsity cheerleading squads. The squads were practicing in the gymnasium at the same time but in separate areas of the gym. The area of the gym where Ms. Battistoni was standing at the time of the accident is a fact in dispute. The plaintiff testified that the stunts were not practiced on mats. However, Ms. Battistoni testified that there was a mat being used at the time of the accident.
The defendant school district maintained in its summary judgment motion that the plaintiff assumed the risk of injury as a cheerleader participating in practice and that it had no legal duty to her. It further suggested that there was no unassumed, concealed or unreasonably increased risk involved. Finally, it argued that the coach was certified and extremely qualified.
The Plaintiff countered that “while it is true that infant students who voluntarily participate in extracurricular activities, such as cheerleading, are ordinarily understood to have assumed the risks to which their roles expose them, such students do not assume those risks that have been unreasonably increased.”
“It is fundamental that to recover in a negligence action a plaintiff must establish that the defendant owed him a duty to use reasonable care, and that it breached that duty. Akins v. Glens Falls City School Dist., 53 N.Y.2d 325, 333, 424 N.E.2d 531, 441 N.Y.S.2d 644 (1981); Pulka v. Edelman, 40 N.Y.2d 781, 782, 358 N.E.2d 1019, 390 N.Y.S.2d 393 (1976); Kimbar v. Estis, 1 N.Y.2d 399, 405, 135 N.E.2d 708, 153 N.Y.S.2d 197 (1956). Where there is primary assumption of risk of a sporting activity, generally, the defendant has no legal duty to the plaintiff. However, while it is true that by voluntarily participating in a sporting event or extracurricular activity, such as cheerleading, the plaintiff is deemed to have assumed those commonly appreciated risks which are inherent in and arise out of the nature of the sport, the plaintiff’s assumption of those risks is not an absolute defense but a measure of the defendant’s duty of care. Morgan v. State, 90 N.Y.2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997), quoting Turcotte v. Fell 68 N.Y.2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).
“In assessing whether the plaintiff assumed the risks associated with the activity in which he or she participated, the court should consider the following factors: (a) the defendant’s breach of duty to provide adequate supervision and equipment; (b) the plaintiff’s ability, agility, amateur status, and mental training in light of the difficulty of the exercise, adequacy of supervision, and lack of informed consent; and (c) whether hazards were those to which [cheerleading] students must be normally exposed. Morgan v. State, 90 N.Y.2d at 476. Schools are required to exercise reasonable care to protect student athletes from unassumed, concealed or unreasonable increased risks. Benitez v. New York City Board of Education, 73 N.Y.2d 650, 658, 541 N.E.2d 29, 543 N.Y.S.2d 29 (1989).”
The court went on to find that the defendant met its threshold burden of “establishing its entitlement to judgment as a matter of law by offering proof of the Plaintiff’s prior experience, together with the testimony of Battistoni, the coach. The burden then shifts to the Plaintiff to establish the existence of triable issues of fact. Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980).
The plaintiff was clearly up for the task, held the court.
“Viewing the totality of the evidence in the light most favorable to the plaintiff, and affording the plaintiff the benefit of every reasonable inference, the court finds that the plaintiff raised a genuine issue of fact as to whether the defendant’s supervision was inadequate and resulted in the failure to exercise reasonable care to protect the plaintiff’s daughter from an unreasonably increased risk. The question of whether there was adequate supervision in the gymnasium on February 15, 2005, where two (2) cheerleading squads were practicing at the same time, is a question for the trier of fact to determine. Moreover, the presence or lack thereof of mats or other protective padding during the cheerleading practice is a material issue of fact that must be determined.”
Carin Lomonico v. Massapequa Public Schools; Supreme Court of New York, Nassau County; Index No.: 007574/06, 2010 NY Slip Op 32333U; 2010 N.Y. Misc. LEXIS 4154; 8/19/10
