By Nicole Bryson, J.D. and Jeff Birren, Senior Writer
Introduction Brandon Hankey was a delivery driver for a wholesale food company. In 2019, he was making a delivery of pies to a local school to be served as part of the annual Thanksgiving fundraiser. Upon his arrival, staff instructed Hankey to take the pallets with the pies into the school’s athletic facility. The facility contained an ice rink, and students were skating. Within minutes, a flying puck stuck Hankey on his head. As a result, Hankey sued the School District for negligence. The District filed a motion for summary judgment, claiming that Hankey assumed the risk of being hit on the head by an errant puck. The trial court denied the motion. The School District appealed to no avail, as the Appellate Division Court unanimously affirmed the trial court decision. Hankey v. Ogdensburg City Sch. Dist., Supreme Court of New York, Appellate Division, Third Department, CV-23-1970, 2025 N.Y. App. Div. LEXIS 252 *; 2025 NY Slip Op 00253 ** (1-16-2025).
The Injury As Described in the Complaint
Hankey sued on January 22, 2021. Hankey and his wife, Amanda Hankey, each alleged a single count of negligence against the District, Brandon M. Hankey and Amanda R. Hankey v. Ogdensburg City School District, St. Lawrence County Clerk, Index Number EFCV-21-159129. Hankey was a delivery driver for Sysco. On November 20, 2019, Hankey arrived at Ogdensburg Free Academy to deliver the pies. A “maintenance worker” (identified later as Paul Pratt) directed Hankey to the delivery location for the “Golden Dome,” an indoor athletic facility. Students were using the ice rink, but no one warned Hankey about the possible risk of injury. While unloading the pies, Hankey “was violently and unexpectedly struck on the head with an errant puck from one of the students on the rink, equipped with a hockey stick and puck.” The blow “caused Hankey to fall injured to the floor.” Ms. Hankey repeated the allegations, and claimed “loss of services, loss of society, loss of consortium and guidance, loss of companionship and loss of support” of her husband.
Additional Facts From Hankey’ Second Deposition
Hankey was deposed for a second time on July 29, 2022. The deposition was attached to the District’s motion for summary judgment via an affidavit filed by Robert R. Lawyer III, counsel for the District. The following is taken from that deposition. On November 20, 2019, Pratt instructed Hankey where to park the Sysco truck. Pratt opened the facility’s door for Hankey and told him to enter into the Dome. Hankey entered with two pallets stacked with pies. Pratt then told Hankey to procced about fifteen feet. Hankey then began to unload the pallets. He did not see students playing ice hockey. He was still unloading the pies and talking to Pratt between five and seven minutes later when he was hit by the puck. After the injury he finished unloading the pies, put the pallets back on the truck, and returned to Sysco. He did not return to work for Sysco after that date due to the injury caused by the puck. Hankey was unable to work for six months and lost insurance coverage. He filed a worker’s compensation claim against Sysco, but he no longer receives benefits.
Hankey still had head pain and dizziness, and his neck is always stiff. Hankey alleged other physical problems, including tingling and numbness in both hands, pain in his left leg, loss of sleep, short-term memory loss. Due to the Covid-19 pandemic, he did not have any treatment between June 2020 and his second deposition.
Pratt’s Deposition
Pratt was deposed on July 29, 2022. The transcript was also an exhibit to the summary judgment motion. He testified that he was a “laborer” for Defendant Ogdensburg City School District. According to Pratt, the rink has a plexiglass covering that is five feet at the goal ends, with netting that reaches to the ceiling. The incident took place along the sides of the rink, where the plexiglass is only 3.5 feet high, and there is no netting. Hankey was busy scanning the pies when Pratt heard a noise and ducked. He then saw Hankey, suddenly with a red face, pointing to his right ear, and saying “ouch.” Pratt did not see the injury, having ducked, but he “knew” Hankey was hit.
Summary Judgment Motion
The District moved for summary judgment on all claims on July 12, 2023. It seemed perfunctory. Counsel Lawyer filed a six-page affidavit with eleven exhibits. His statement of facts had eight numbered paragraphs. The “Discussion” section had eighteen numbered paragraphs. According to Lawyer, the Golden Dome “is much the same as it is in most hockey rinks.” A gym class was in session at the time of the incident.
The substitute teacher in charge that day was Ms. Sparrow. She told the class to “not take slap shots at the goal” and the students “generally listened to her.” According her affidavit, the students “were required to wear protective gear, including helmets and gloves.” The students were always under Sparrow’s supervision. She did not witness the injury, nor was she aware of it.
The “Discussion” section further argued that any duty was discharged because it was owed to the students, not bystanders, citing two cases. In Smero v. City of Saratoga Springs, 160 A.D. 3d 1169, 1171 (3d Dept. 2018), the plaintiff was a spectator at a youth hockey game. Smero applied the assumption of risk doctrine to an injured spectator. The other case cited in this section was Spaulding v. Chenago Valley Cent. Sch. Dist., 890 N.Y.S. 2d 162, (3d Dept. 2009), lv denied 14 N.Y. 3d 707(2010). In that case, Spaulding was participating in a gym class when he was injured. Spaulding also applied the assumption of risk doctrine when affirming the grant of summary judgment. Thetrial court was not impressed and remained unpersuaded.
“In this case, no one can find that the delivery man was himself attending a sporting activity but rather walking through an area of a gym class which was being supervised by a teacher who had broken down her class into three separate factions, three separate activities.” The District’s cited cases “both” involved “bystanders or people who put themselves voluntarily in the purview, in the ambit of the sporting activity that was ongoing. In this case, we cannot say the same thing of Mr. Hankey.”
The District further asserted that Sparrow discharged her duty of supervision to the students, but the Court found there was a triable issue of fact as to whether the District breached the duty of care for the “protection of others who were invited on to the property.” The District, and Sparrow’s affidavit, stressed the duty of care to the students, while virtually ignoring the duty owed to Hankey, who had nothing to do with the gym class. Both Lawyer and Sparrow were silent as to any warning given to Hankey. The Court denied the motion from the bench on September 22, 2023, and issued a written Order on October 6, 2023. Undeterred, the District appealed to the New York Supreme Court, Appellate Division.
Appellate Court Decision
The appeal was based on the same grounds as their unsuccessful summary judgment motion: that Hankey assumed the risk of injury, and the District did not breach any duty of care owed to Hankey. The Appellate Division Court affirmed the lower court’s order denying Defendants Motion for Summary Judgment, but went even further than the trial court.
The Assumption of Risk Doctrine Does Not Apply
The Appellate Division Court summarily rejected the defense invocation of the assumption of risk doctrine. That doctrine applies when an individual voluntarily participates in an activity with known inherent risks. See Custodi v Town of Amherst, 20 NY3d 83, 88, [2012]; accord Grady v Chenango Val. Cent. Sch. Dist., 40 NY 3d 89, 95, [2023]. In the context of sports, this doctrine generally protects schools, coaches, and event organizers from liability for injuries sustained during play. While the primary assumption of risk doctrine extends to spectators and bystanders of such activities, according to Smero, any such engagement must still have been consenting and voluntary.
“Hankey was not observing a sporting event either actively or passively at the time of the subject incident.” Rather, he was working on delivering pies for his employer. The District’s employee, Pratt, directed Hankey exactly where to place his delivery, near mid-ice, resulting in the injury. Hankey did not voluntarily place himself in harm’s way of the hockey class or errant puck and thus, cannot be a spectator or bystander under the assumption of risk doctrine. That defense failed as a matter of law.
Foreseeability In sports injury cases where the assumption of risk defense is applied, courts often find that the injury was the result of spontaneous and unpredictable events inherent in the sport. While Hankey’s injury was the result of a spontaneous event, it was not unpredictable, distinguishing it from cases involving purely accidental injuries during play, (compare Spaulding v Chenango Val. Cent. School Dist., and Bellinger v. Ballston Spa. Cent. Sch. Dist., 871 N.Y.S. 2d 432 [3d Dept. 2008], lv denied, 879 N.Y.S. 2d 50 [20009]).
In Hankey’s case, Sparrow anticipated the specific conduct that led to his injury and instructed students against engaging in it. Sparrow instructed the students practicing hockey skills that day on “permissible behavior, such as stick handling, passing, light shots on goal and impermissible activities, i.e. slapshots, and she did not want to hear anything hit off the boards… [in the past], she had seen pucks go out of the rink from slapshots or hitting off goal posts.” Thus, the risk was actually foreseen. The fact that the exact type of accident was anticipated, but not adequately prevented, further supports Hankey’s claim of negligence against the District.
Distinguishing from Spontaneous Accidents During Play
In contrast to cases where an injury results from the ordinary and unpredictable nature of a sport, Hankey’s injury arose from specific conduct that had been identified as dangerous beforehand. This case does not involve a situation where an individual was injured due to the unpredictable nature of a fast-moving game, but rather a scenario where known risks were ignored. The presence of prior warnings by Sparrow indicate the District had notice of the risk and yet failed to take reasonable steps to prevent harm, unlike in the cases of Spaulding and Bellinger.
Significant Triable issues of Fact Remain Regarding the District’s Breach of Duty
Overruling the supreme court’s holding, the Appellate Division Court held the duty to be imposed in the instant case was not a question of fact but a legal issue for the courts to resolve, see Eiseman v State of New York, 70 NY2d 175, 187 [1987).
“Landowners in general have a duty to act in a reasonable manner to prevent harm to those on their property” (D’Amico v Christie, 71 NY2d 76, 85 [1987], citing Basso v Miller, 40 N.Y. 2d 233, [1976]; see Goga v Binghamton City School Dist., 754 N.Y.S.2d 739 [3d Dept 2003]). That duty can include “a duty to control the conduct of [*7] third persons on their premises when they have the opportunity to control such persons and are reasonably aware of the need for such control” (D’Amico v Christie, 71 N.Y. 2d at 85; see Lathers v Denero, 63 N.Y.S. 3d 147 [3d Dept 2017]; Pendulik v East Hampton Union Free School Dist., 792 N.Y. 2d 587 [2d Dept 2005]; Morbillo v Board of Educ. of Mt. Sinai School Dist., 703 N.Y.S. 2d 241 [2d Dept 2000]).
The District had a duty to maintain safety which extended to controlling students’ actions and implementing adequate protective measures. Defendant, via its agents, Pratt and Sparrow, was aware of the pie delivery and the presence of a gym class engaging in hockey skills, among other activities at the time.
The Appellate Division Court decision went further than the lower court and highlighted the following specific failures on Defendant’s part that support Hankey’s claim of negligence, adding that “defendant’s own submissions reveal triable issues of fact as to whether it breached that duty,” including:
Unloading in an unsafe location: Pratt escorted Hankey into the facility and instructed him exactly where to deliver the pies near mid-ice “where the plexiglass was lowest and there was no netting.” Whether the selection of the area near mid-ice exposed Hankey to an unreasonable risk could constitute a failure to exercise reasonable care, requiring jury consideration.
Failure to Monitor or Instruct Students Properly: Sparrow made no effort to further instruct her students or increase monitoring of the students practicing in hockey skills even though she was aware Hankey was present delivering the pies. Whether school personnel adequately monitored the activities in the facility and provided adequate instruction to the students to prevent foreseeable injuries to guests on the premises is a triable issue of fact.
Inadequate Barriers and Safety Precautions: The only evidence regarding safety features were in the form of estimates from Pratt. The absence of adequate protective measures, including barriers to prevent errant objects, such as the puck in this case, could be deemed negligent making it a triable issue for the jury.
Ultimately, a jury must determine whether the District’s negligence directly contributed to Hankey’s injury. There is a significant difference between inherent risks in sports and preventable dangers created by inadequate supervision and safety measures.
Conclusions
The District now faces trial on the negligence causes of action, shorn of one defense and the ability to introduce its supporting evidence. Hankey could hardly have asked more from a witness employed by the District than he gained from Pratt’s deposition, especially because the supposedly supervising Sparrow “testified that she was not paying much attention to Hankey,” nor was she aware that Hankey had been hit. It would appear that this case is now about how much the District may owe Hankey for his injuries.
This is the other side of the case. Hankey had not received treatment in the three years prior to his second deposition, nor seen a doctor of any kind. Even in the first year following his injury his medical visits and treatments were infrequent, at best. Damages in personal injury cases can be related to the costs of actual treatment for the injury. That appears to be a very small number.
Athletic facilities need to be aware that the law that may cover participants and spectators is not the same law that applies to everyone else. This is the better social policy. The District’s logic would place the cost of loss on the innocent, but not those charged with supervising the facilities.
Counsel should read precedent carefully to make sure that it actually applies. No doubt the District’s insurance carrier paid for a motion and appeal that although filed with enthusiasm, was based on inapposite case law. This case should have been settled years ago. Hankey went at least three years without getting treatment. His special damages were not increasing, but the legal costs and fees were. Once Hankey returned to the labor force, it was time to settle. Nevertheless, the case continues.
