A New York state appeals court has affirmed the ruling of a trial court that a defendant indoor golf facility was negligent in the utilization of a safety net, which failed to support a plaintiff golfer after he lost his balance, fell, and was injured.
The court made this ruling in spite of the fact that the defendant did not own the Golden Bear Golf Center when the safety net was installed there.
The plaintiff, Giles Manias, initiated the suit when he fell from the upper level of a driving range at the Golden Bear Golf Center. He alleged that “the safety net extending out from the upper level was negligently designed and constructed because it failed to support plaintiff when he lost his balance and fell over the edge of the platform, and that the defendant therefore failed to maintain the premises in a reasonably safe condition.
“We conclude that Supreme Court properly denied the defendant’s motion seeking summary judgment dismissing the complaint. We reject the defendant’s contention that the plaintiff assumed the risk inherent in driving golf balls from the upper deck of the driving range and thus that defendant is not liable for plaintiff’s injuries (cf. Trevett v City of Little Falls, 6 NY3d 884, 885, 849 N.E.2d 961, 816 N.Y.S.2d 738, rearg denied 7 NY3d 845, 857 N.E.2d 69, 823 N.Y.S.2d 774; Barbato v Hollow Hills Country Club, 14 AD3d 522, 789 N.Y.S.2d 199).
“Although it may have been foreseeable to the plaintiff that he could fall from the platform (see generally Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49), an ‘allegedly damaged or dangerous net or other safety feature is by its nature not automatically an inherent risk of a sport as a matter of law for summary judgment purposes’ (Siegel v City of New York, 90 NY2d 471, 488, 685 N.E.2d 202, 662 N.Y.S.2d 421).
“Although it is undisputed that defendant was not the owner of the facility when the safety net was installed, we conclude that defendant failed to establish that the netting was reasonably safe for its intended purpose, i.e., that it was installed or maintained ‘in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ (Basso v Miller, 40 NY2d 233, 241, 352 N.E.2d 868, 386 N.Y.S.2d 564; see generally Peralta v Henriquez, 100 NY2d 139, 144, 790 N.E.2d 1170, 760 N.Y.S.2d 741).
“In any event, the plaintiffs raised an issue of fact sufficient to defeat the motion by submitting the affidavit of a professional engineer stating that the nylon twist ties used to secure the net to the I-beams were intended to secure wire or cable but not to support a safety net, which should be se-cured by metal clips or shackles (see generally Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595).”
Giles Manias et al. v Golden Bear Golf Center, Inc.; S.Ct.N.Y., App. Div., 4th Dept.; 1590 CA 06-02832; 2007 NY Slip Op 10359; 2007 N.Y. App. Div. LEXIS 12981; 12/21/07
Attorneys of Record: (for defendant) Feldman, Kieffer & Herman, Llp, Buffalo (Stephen M. Sorrels Of Counsel). (for plaintiff) Thomas C. Pares, Buffalo.
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Court Dismisses Coach’s Title IX Suit, Finding School Had Legitimate Reasons Not To Renew His Contract
A state court judge has determined that a university had legitimate reasons for not renewing the contract of its women’s soccer coach, which had little to do with the coach’s allegations that the school violated Title IX.
Eric Swanbeck, the former women’s soccer coach at Minnesota State University Moorhead, sued MSUM in 2006, alleging that the university retaliated against him for two separate complaints to the Department of Education’s Office of Civil Rights about alleged Title IX violations.
However, the state court dismissed all claims against the school, writing that Swanbeck’s harsh personality and serious NCAA violations gave MSUM legitimate reasons not to renew the contract.
It became apparent at trial that there had been a pattern of controlling and abusive behavior by Swanbeck toward his players and coaches that resulted in an inability to retain athletes on the roster.
The court noted that Swanbeck returned only three players for his second season, four in his third season and six in his fourth and final season. To that point, several players and their parents complained to Swanbeck, former AD Katy Wilson and other MSUM athletic department staff members. Some of the written complaints included:
• “The coach’s behavior threatens (our daughter’s) emotional, psychological and physical well-being.”
• “(Swanbeck’s) vindictive, malicious, coercive expressions and actions are outrageous. Many of your students, (our children), are heroes for confronting coach Swanbeck’s inappropriate, spiteful, childish behavior.”
It was also reported that Swanbeck committed an NCAA violation when he took an ineligible player on a road trip in 2003. He then lied about the violation and asked the player to lie as well when she was interviewed.
Swanbeck had filed a Title IX complaint with OCR on July 24, 2003, claiming MSUM discriminated against women’s programs. He filed another complaint on Jan. 13, 2004, alleging he was retaliated against for his previous contact with the OCR.
Swanbeck’s contract was not renewed on June 1, 2004.
