A New York state court has denied a defendant roller rink’s motion for summary judgment in a case in which the rink was sued for negligence by a patron, who was injured by another skater.
In so ruling, the court found that “there are triable issues of fact. Likewise, here there are triable issues of fact concerning whether the defendants were negligent in their supervision and control of the participants in the public skating session and whether in the exercise of reasonable care, they could have prevented the alleged misconduct that caused the plaintiff’s injury.”
Plaintiff John Kostkowicz was roller skating at the Roxy Roller Rink on September 16, 2004 when another skater rolled into him, causing him to fall and suffer an injury. Kostkowicz sued. The defendants responded with a motion for summary judgment based on the doctrine of assumption of risk, prompting the instant opinion.
In his complaint, the plaintiff claimed that the defendants “breached their duty to supervise a skating rink open to the public and to take action to control any reckless conduct of the skaters of which defendants had been given notice.” Specifically, he alleged that half an hour before “the occurrence that caused his injuries he alerted rink security that a group of skaters were ‘slingshotting’ each other across the floor in a manner that he and one of his companions considered dangerous.”
The court noted that the defendants have not challenged that claim in their motion.
Instead, they simply argued that they “are entitled to summary judgment dismissing this action as a matter of law based on the assumption of the risk doctrine. They assert that participants in athletic or sporting events are deemed as a matter of law to assume the known risks associated with the particular sport. Turcotte v. Fell, 68 N.Y.2d 432, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986)}. With respect to ice skating, they urge the application of well settled case law that holds that participants in athletic sudden collisions between skaters, such as the one sustained by plaintiff in this case, are a common occurrence and a risk which all skaters assume. Zambrana v. City of New York, 262 A.D.2d 87 (N.Y. App. Div. 1999) aff’d, 94 N.Y.2d 887 (2000). Lopez v. Skate Key, Inc., 174 A.D.2d 534 (N.Y. App. Div. 1991).
“In Zambrana, plaintiff’s deposition testimony was that moments before a teenage skater collided with her, causing her to fall, she had complained to a skating rink guard that a ‘couple of teenage children . . . were skating rather fast.’ The Appellate Division held on those facts that ‘collisions between skaters, such as the one sustained here, are a common occurrence and a risk which all skaters assume’ and that ‘this was an impact the guards could not have prevented, even with the most intensive supervision.’ Id.”
Based on that case, the defendants maintained that the court “must dismiss the action at bar, because there is no evidence that any level of supervision could have prevented the plaintiff’s sudden accident.”
The court, however, determined “that the evidence that the plaintiff proffers in opposition to the motion distinguishes this case from the facts in Zambrana. In Zambrana, the plaintiff had alerted the attending skate guard only moments before her accident. In contrast, plaintiff Kostowicz testified that within a half hour before the incident, he alerted security personnel of the reckless skaters, and that the security guard promised that he would look into the problem. Plaintiff Kostowicz testified that other skaters at the rink also complained of the offending skaters before plaintiff suffered his injury. Further, while plaintiff Zambrano complained of ‘teenage children skating rather fast,’ he produced no evidence that they were engaged in ‘slingshotting,’ the activity that is at issue here.”
The court considered the motion for summary judgment in a “light most favorable to the opponent of the motion. Valderrarna v. New York City Transit Auth., 18 A.D.3d 251 (N.Y. App. Div. 2005). Viewed in that light, the evidence in the record on the motion does not establish that the accident was caused by a sudden collision common to skating, as a matter of law, there are triable issues of fact, including whether defendants received notice about the reckless actions of another skater in sufficient time so that through proper supervision, they should have taken measures to prevent the accident. Williams v. Skate Key, Inc., 240 A.D.2d 277 (N.Y. App. Div. 1997).
“Squarely on all fours with the facts of this case are those in Fritz. Fritz v. City of Buffalo, 277 N.Y. 710 (1938). There the Court of Appeals affirmed the appellate division’s holding that the trial court properly submitted to the jury the question whether defendant [city] ‘should have appreciated the danger of crack-the-whip being played on the ice and whether it provided enough general supervision to prevent the playing of this game under such circumstances as would be dangerous.’ Likewise, here there are triable issues of fact concerning whether defendants were negligent in their supervision and control of the participants in the public skating session and whether in the exercise of reasonable care, they could have prevented the alleged misconduct that caused plaintiff’s injury.”
John Kostkowicz v. The Roxy Roller Rink, Inc., et al.; S.Ct.N.Y.; 104240/05, 2011 NY Slip Op 31245U; 2011 N.Y. Misc. LEXIS 2228; 6/6/11.
