Appeals Court Overturns Ruling in Negligence Case

Sep 11, 2009

A New York state appeals court has reversed a lower court’s ruling, thus granting summary judgment to a school district, which was sued by a wrestler who was injured during practice.
In so ruling, the court found that the plaintiff assumed the risk of injury ad that the affidavit of the plaintiffs’ expert was insufficient to raise a triable issue of fact.
Plaintiff Anthony F. Musante, Jr. was an experienced high school wrestler, who allegedly was injured during wrestling practice when he stepped on the edge of a wrestling mat and collided with a nearby wall.
He sued in Supreme Court, Nassau County, alleging that the defendant “was negligent in directing the injured plaintiff to use the wall as a finishing point for the drill.” The defendant moved for summary judgment, a motion the court denied. The defendant appealed.
Citing Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421, the appeals court noted that “by engaging in a sport or recreational activity, a participant 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.”
“Even where the risk of the activity is assumed, ‘a board of education, 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 NY2d 650, 658, 541 N.E.2d 29, 543 N.Y.S.2d 29).”
The court continued, noting that the defendant “made a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of the risk by demonstrating that the risk of colliding with the wall was inherent in the activity, and the condition of the wall was open and obvious (see Ribaudo v La Salle Inst., 45 AD3d 556, 557, 846 N.Y.S.2d 209; Marucheau v Suffolk County Community Coll., 23 AD3d 445, 808 N.Y.S.2d 119; Kazlow v City of New York, 253 AD2d 411, 676 N.Y.S.2d 229), as was any height differential between the floor and the wrestling mat (see Sammut v City of New York, 37 AD3d 811, 812, 830 N.Y.S.2d 779; Morlock v Town of N. Hempstead, 12 AD3d 652, 653, 785 N.Y.S.2d 123; Galski v State of New York, 289 AD2d 195, 195-196, 733 N.Y.S.2d 695; Peters v City of New York, 269 AD2d 581, 581-582, 703 N.Y.S.2d 923). Furthermore, the injured plaintiff’s voluntary participation in the activity does not implicate the doctrine of inherent compulsion (see Benitez v New York City Bd. of Educ., 73 NY2d at 658; Vecchione v Middle Country Cent. School Dist., 300 AD2d 471, 472, 752 N.Y.S.2d 82).”
The court also took issue with the affidavit of the plaintiffs’ expert. The expert opined that “the defendant was negligent for failing to conduct the drill in a more appropriate, larger, and safer venue.”
That decision, according to the appeals court, “did not increase the inherent and obvious risks of the exercise” (Ross v New York Quarterly Mtg. of Religious Socy. of Friends, 32 AD3d 251, 252-253, 819 N.Y.S.2d 749; see DiGiose v Bellmore-Merrick Cent. High School Dist., 50 AD3d 623, 855 N.Y.S.2d 199; cf. Cody v Massapequa Union Free School Dist. No. 23, 227 AD2d 368, 642 N.Y.S.2d 329). Furthermore, the expert failed to identify any specific industry standard upon which he relied in concluding that the defendant negligently conducted the exercise (see Lombardo v Cedar Brook Golf & Tennis Club, Inc., 39 AD3d 818, 819, 834 N.Y.S.2d 326; Barbato v Hollow Hills Country Club, 14 AD3d 522, 523, 789 N.Y.S.2d 199; Kazlow v City of New York, 253 AD2d at 411; cf. Greenburg v Peekskill City School Dist., 255 AD2d 487, 680 N.Y.S.2d 622).”
Anthony F. Musante, Jr., et al. v Oceanside Union Free School District; S.Ct. N.Y., App. Div., 2d Dept; 2009 NY Slip Op 4877; 2009 N.Y. App. Div. LEXIS 4682; 6/9/09
Attorneys of Record: (for appellant) O’Connor, O’Connor, Hintz & Deveney, LLP (Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Gregory A. Cascino], of counsel). (for respondent) Taub & Marder, New York, N.Y. (Elliot H. Taub of counsel).


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