A New York state appellate court has affirmed the ruling of a lower court, which granted summary judgment to a health club patron/swimmer, who was sued by a personal trainer after the two parties collided in an indoor pool.
Plaintiff Pamela Rueckert was employed by Equinox Gym. On April 23, 2009, she was conducting a training session with a nonparty client in the facility’s pool. Defendant Gail Cohen, who was swimming laps in the same lane as that in which the plaintiff was conducting her session, struck the back of the plaintiff’s right knee with her foot while turning within the lane in order to head in the opposite direction. Both parties freely admitted that at the time of the accident the pool was open for free swim.
Nonetheless, Rueckert sued to recover damages for personal injuries allegedly sustained as a result of negligence, and the torts of assault and battery. Cohen moved for summary judgment dismissing the complaint on grounds that the plaintiff voluntarily assumed the risk of contact with another swimmer when she entered the pool, and that the contact between the two was accidental and unintentional. The supreme court granted the motion.
“The doctrine of primary assumption of risk is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks,” wrote the court, citing Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127.
“Thus, ‘[a] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law’ (Reidy v Raman, 85 AD3d 892, 892, 924 N.Y.S.2d 581, quoting Leslie v Splish Splash at Adventureland, 1 AD3d 320, 321, 766 N.Y.S.2d 599; see Morgan v State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421). Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks (see Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526). However, by voluntarily engaging in a sport or recreational activity, a participant assumes, or consents to, the commonly appreciated risks that are inherent in and arise out of the activity generally, and which flow from the participation (see Morgan v State of New York, 90 NY2d at 484; Reidy v Raman, 85 AD3d at 892; Reyes v City of New York, 51 AD3d 996, 858 N.Y.S.2d 760). An incidental collision or contact between persons confined to a pool lane during a free swim is an inherent risk of the activity (see Bleyer v Recreational Mgt. Serv. Corp., 289 AD2d 519, 735 N.Y.S.2d 616; Kleiner v Commack Roller Rink, 201 AD2d 462, 607 N.Y.S.2d 142).”
The appellate court went on to note that Cohen “established, prima facie, that her conduct was not intentional or reckless but, rather, constituted an incidental contact between swimmers.”
Meanwhile, “the plaintiff failed to raise a triable issue of fact as to whether the defendant’s actions in striking the plaintiff’s knee with her foot were reckless or intentional in nature (cf. Filippazzo v Kormoski, 75 AD3d 618, 905 N.Y.S.2d 276). Therefore, the court properly granted the defendant’s motion for summary judgment dismissing the complaint.”
The opinion can be found here: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D41396.pdf
Attorneys of Record: (for appellant) Gassler & O’Rourke, P.C. (Pollack & Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac, Jillian Rosen, and Michael Zhu], of counsel). (for respondent) Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel).
