A New York state appeals court has reversed a trial court and found that the lower court misapplied the doctrine of primary assumption of the risk when it denied a school district’s motion for summary judgment in a case in which a high school football player sued the district after he suffered a freak injury to his foot during a practice.
In so ruling, the appeals court noted that the plaintiff “failed to raise a triable issue of fact regarding whether the defendant’s alleged negligent supervision constituted a failure to exercise reasonable care in protecting the plaintiff from an unreasonably increased risk.”
In August 2014, the plaintiff allegedly was injured during a high school junior varsity football practice when a five-person blocking sled, which was being used during a drill, was pushed over his left foot. “The plaintiff was an experienced football player, having played football since he was seven years old,” wrote the court. “He had attended 10 practices with the junior varsity team in the weeks before the incident and had participated in the same drill with the blocking sled.
“According to the deposition testimony of the plaintiff’s football coach, on the day the plaintiff was injured, the plaintiff was not physically participating in practice because he did not feel well, but had asked the coach to be allowed to stay ‘to make sure he didn’t miss out on learning anything, plays and things like that.’ The coach told the plaintiff that he could watch practice, but could not participate, and directed him to stand parallel to the sideline, which was ‘maybe 10 yards away’ from where team members were performing a drill pushing the blocking sled.
“According to the plaintiff’s deposition testimony, as the plaintiff watched the drill, he saw that the sled would sometimes veer to the right or left. During the drill, the plaintiff moved parallel to the direction in which the other team members were pushing the sled. At the time of the accident, the plaintiff was three to five yards away from the sled when the five players started to push it, but he was not paying attention to the drill. When he looked back from where he was standing, he saw that the sled had veered toward him. The sled was less than five yards away from the plaintiff when a coach began yelling at him to get out of the way. The sled ran over the plaintiff’s left foot, causing injury to his ankle.”
The plaintiff, by his mother, and his mother individually, sued to recover damages for the injuries. After discovery, the defendant moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of primary assumption of the risk. The trial court denied the defendant’s motion.
In its analysis, the appeals court offered the following summary of applicable case law:
“Under the doctrine of primary assumption of the risk, a person who chooses to engage in certain recreational or athletic activities consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. When a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence. The doctrine applies when a consenting participant in a qualified activity is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks. Participants, however, are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced. Thus, an educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks.”
In applying that generally accepted application of the doctrine, the appeals court wrote that in the instant case the defendant “established its prima facie entitlement to judgment as a matter of law. The defendant submitted evidence that the plaintiff fully comprehended the risks inherent in the sport of football, specifically, that a blocking sled could veer to the left or the right while it was being used in a drill (see Brown v City of New York, 69 AD3d 893, 893-894, 895 N.Y.S.2d 442; cf. M.P. v Mineola Union Free Sch. Dist., 166 AD3d at 954). In opposition, the plaintiffs failed to raise a triable issue of fact regarding whether the defendant’s alleged negligent supervision constituted a failure to exercise reasonable care in protecting the plaintiff from an unreasonably increased risk (see Spiteri v Bisson, 134 AD3d 799, 801, 20 N.Y.S.3d 429).”
M.F. v Jericho Union Free Sch. Dist.; S.Ct.N.Y., App. Div.; 2019 N.Y. App. Div. LEXIS 3776; 5/15/19
Attorneys of Record : (for appellant) Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY (Christine Gasser of counsel). (for respondents) Neil H. Greenberg & Associates, P.C., Massapequa, NY.