A New York state appeals court has affirmed a trial court’s ruling for a student athlete, who sued her school after she was injured during a drill. The court found specifically that questions remained as to whether the coach had unnecessarily increased the risk of injury.
The incident involved a seventh grade student, who was a member of the girls’ softball team. As preparation for the upcoming season, the softball coach decided to hold a practice in the school‘s gymnasium. One of the drills during the practice was a sliding drill where “the students took turns running across the hardwood floor toward an area where the floor was covered by parachute material, where they were directed to slide on the material.”
While performing the drill, the plaintiff injured her leg and subsequently sued the school. The defendant moved for summary judgment, which the trial court denied. The defendant appealed.
The appeals court noted that the infant plaintiff testified that during this drill the coach and her assistant did not smooth out and reset the material after each student’s slide. The coach and her assistant contradicted that testimony.
Further, the plaintiffs argued that they had raised a triable issue as to “whether the inherent and obvious risks of the subject activity were unreasonably increased by the supervising coach (see Zmitrowitz v Roman Catholic Diocese of Syracuse, 274 A.D.2d 613, 615, 710 N.Y.S.2d 453 [2000]; Karr v Brant Lake Camp, 261 A.D.2d 342, 343, 691 N.Y.S.2d 427 [1999]; cf. Fintzi v New Jersey YMHA-YWHA Camps, 97 N.Y.2d 669, 670, 765 N.E.2d 288, 739 N.Y.S.2d 85 [2001]).
“To begin, plaintiffs’ expert opined that the coach unreasonably increased the risks of the exercise by directing the students to slide while wearing sneakers, which, according to the expert, would create traction on the gymnasium floor from which injury could result. In addition, the expert opined that, if (as the infant plaintiff testified) the parachute material were not smoothed out and reset before each successive slide, such an omission was a breach of sound coaching practice that could have been the cause of the accident.
“In this regard, it is significant that the infant plaintiff testified that the accident occurred when her leg ‘got caught’ in material that was ‘bunched up’ from the previous slide. Finally, the expert opined that the coach should not have directed the infant plaintiff to begin sliding before she reached the parachute material. Given that the uncovered hardwood floor would have generated greater friction than the material, beginning to slide while still on the uncovered floor (if this is what the infant plaintiff did) could have been a cause of the accident.”
The appeals court did rule against the plaintiffs on their expert’s remaining theory on why the defendant was negligent.
“The failure to use a ‘spotter’ for this activity, or to train in ‘progressive steps,’ did not increase the inherent and obvious risks of the exercise, which, to reiterate, the infant plaintiff assumed through her voluntary participation (see Morgan v State of New York, supra; Turcotte v Fell, supra). If plaintiffs were permitted to go to trial on this theory, predicated solely on defendant’s alleged failure to realize a conceivably attainable additional increment of safety, little would remain of the well-established doctrine of primary assumption of risk,” reasoned the court.
Overall, however, the court found it premature to dismiss the claim until more facts are uncovered.
“An educational institution, ‘its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks’ (Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 658, 541 N.E.2d 29, 543 N.Y.S.2d 29 [1989].”
Alexandra Ross, etc., et al. v New York Quarterly Meeting of the Religious Society of Friends, etc.; S.Ct.N.Y., App. Div., 1st dept.; 7326, Index 109343/02; 8/10/06
Attorneys of Record: (for appellant) Matthew Sakkas, New York. (for respondents) Wingate, Russotti & Shapiro, LLP, New York (William A. Wingate of counsel).
