By Gabriel J. Hernandez
A high school lacrosse player’s attempt to recover damages for personal injuries which occurred during an organized lacrosse game was dismissed last month by a New York appeals court.
The plaintiff, Antonio Ciccone, had sought to recover damages from the Bedford Central School District in New York after suffering injuries in a collision with another player during a district-sponsored lacrosse match.
In a unanimous decision, the appeals court reversed a Westchester County court’s ruling which initially had denied the school district’s motion for summary judgment.
Ciccone, whose injuries occurred when he was executing a body check block, originally brought the action against the school district alleging that he was not properly trained in the technique of executing body check blocks, and that the school district did not provide adequate “supervision” to prevent other players from moving Ciccone’s body after the collision. Ciccone’s counsel argued that such movement increased “the likelihood that his injury was exacerbated.”
The school district moved for summary judgment on the ground, among others, “that the action was barred by the doctrine of assumption of risk.” The appeals court agreed, ruling that “a party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595).”
But it was Ciccone’s own testimony during pre-trial depositions that apparently hurt him the most. In their ruling, all four judges concurred that “ … Given Antonio’s extensive deposition testimony regarding his familiarity with appropriate checking techniques and his appreciation of the dangers posed by performing head blocks, the claim by the plaintiffs’ expert that additional instruction might have prevented Antonio’s injury constituted sheer speculation and was insufficient to raise a triable issue of fact regarding whether any alleged lack of instruction unreasonably increased the risk of injury (Benitez v New York City Bd. of Educ., supra).”
The appeals court judges also ruled that Ciccone’s attorneys had “failed to submit any evidence that an alleged failure to prevent another player from moving Antonio after he fell proximately caused or contributed to his injury (Edelson v Uniondale Union Free School Dist., 219 A.D.2d 614, 631 N.Y.S.2d 391).”
The concurring judges said that Ciccone’s expert witness had “merely opined” that the player who moved the plaintiff’s body after the collision had exacerbated his condition, and that there was no “competent medical evidence” to prove otherwise.
The appeals judges concurred that the lower court had correctly noted that the school district had sustained its burden of proof “by demonstrating that Antonio was a highly-skilled and trained athlete who had been playing lacrosse since the sixth grade and who was well aware of the potential for injury resulting from collisions with other players.”
During the pre-trial depositions, Ciccone had also indicated that he had performed an average of “20 to 30” body check blocks during any given game, and that he considered himself to have “excellent technique” in executing these types of blocks. He also stated that he believed he had employed a “proper body check at the time of the injury,” and that he “understood the dangers of ‘spearing’ or using one’s head to strike or block another player’s body.”
Ciccone also testified that he had never been penalized for “spearing” or making any other illegal blocks.
“This evidence demontrated, prima facie, that Antonio fully appreciated and voluntarily assumed the risk of injury in playing lacrosse (Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 541 N.E.2d 29, 543 N.Y.S.2d 29).
Antonio Ciccone, et. al, v Bedford Central School District 8/15/05
Attorneys of Record: (for plaintiffs) Annette G. Hasapidis of Bashian & Farber, LLP, White Plains, N.Y.; (for defendants) Christine Gasser of Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.
