A New York state appeals court has reversed a trial court and granted summary judgment to Hofstra University and Hofstra Summer Camps in a case in which it was sued by a high school basketball player, who suffered an injury while attending a basketball camp at the school. In so ruling, the appeals court found that plaintiff Shyla Osmond did assume the risk of injury.
Osmond suffered the injury while dunking a basketball during a slam dunk competition. She sued for negligent supervision.
The Hofstra defendants moved for summary judgment, arguing that the doctrine of primary assumption of risk barred the plaintiff from any recovery. The trial court denied the motion on July 20, 2017 and the plaintiff appealed.
In its analysis, the appeals court noted that under the doctrine of primary assumption of risk, “if the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be.” (Brown v City of New York, 69 AD3d 893, 893, 895 N.Y.S.2d 442; see Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421).
“Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see E.B. v Camp Achim, 156 AD3d 865, 866, 67 N.Y.S.3d 666). Participants are not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks (see Morgan v State of New York, 90 NY2d at 485).”
The appeals court continued, noting that the Hofstra defendants “demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff assumed the risk of injury by voluntarily participating in the slam dunk competition (see Bukowski v Clarkson Univ., 19 NY3d 353, 971 N.E.2d 849, 948 N.Y.S.2d 568).
“In opposition, the plaintiff submitted the affidavit of a sports expert, which failed to raise a triable issue of fact as to whether the plaintiff assumed the risk of her injuries (see Musante v Oceanside Union Free School Dist., 63 AD3d 806, 881 N.Y.S.2d 446; see also Legac v South Glens Falls Cent. Sch. Dist., 150 AD3d 1582, 52 N.Y.S.3d 750).
“Accordingly, the Supreme Court should have granted the motion of the Hofstra defendants for summary judgment dismissing the complaint insofar as asserted against them.”
Shyla Osmond v. Hofstra University, et al.; S.Ct.N.Y., App. Div., 2d Dept.; 2018 N.Y. App. Div. LEXIS 3632; 2018 NY Slip Op 03693; 5/23/18
Attorneys of Record: (for plaintiffs) Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman and Frank Raia of counsel). (for defendants) Bamundo, Zwal & Schermerhorn, LLP, New York, NY (Michael C. Zwal of counsel).
