A New York state appeals court has reversed the finding of a trial court, finding that a plaintiff/spectator who was injured during a hammer throw competition at the Scottish Highland Games assumed the risk of injury.
After the incident in question, plaintiff Wendy Kreil sued the man that threw the hammer as well as the Niagara County Department of Parks and Recreation, claiming that they were responsible for her injuries. The Supreme Court denied both Campbell and the county’s respective motions for summary judgment.
On appeal, the court concluded the trial court erred in denying Campbell’s motion. “In a suit against participants in a game, a spectator generally will be held to have assumed the risks inherent in the game, including the specific risk of being struck” (Sutfin v Scheuer, 145 A.D.2d 946, 947, 536 N.Y.S.2d 320, affd 74 N.Y.2d 697, 541 N.E.2d 408, 543 N.Y.S.2d 379; see Honohan v Turrone, 297 A.D.2d 705, 747 N.Y.S.2d 543; Cuesta v Immaculate Conception R.C. Church, 168 A.D.2d 411, 562 N.Y.S.2d 537).
The court added that “Campbell submitted proof establishing that the risk of being struck by a thrown hammer is ‘inherent in the sport and perfectly obvious’ (Cannavale v City of New York, 257 A.D.2d 462, 462, 683 N.Y.S.2d 528, quoting Morgan v State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421), and there is no evidence that Campbell engaged in any ‘reckless, intentional or other risk-enhancing conduct not inherent in the activity’ (Kaufman v Hunter Mtn. Ski Bowl, 240 A.D.2d 371, 372, 657 N.Y.S.2d 773, lv denied 91 N.Y.2d 805, 691 N.E.2d 632, 668 N.Y.S.2d 560).”
Turning to the County’s appeal, the court wrote that it “established that it owed no duty to protect plaintiff from ‘the dangers inherent in the sport so far as they are obvious and necessary’ (Heard v City of New York, 82 N.Y.2d 66, 71, 623 N.E.2d 541, 603 N.Y.S.2d 414, rearg denied 82 N.Y.2d 889, 82 N.Y.2d 893, 632 N.E.2d 465, 610 N.Y.S.2d 155, quoting Curcio v City of New York, 275 NY 20, 23-24, 9 N.E.2d 760, rearg denied 276 N.Y. 610, 12 N.E.2d 600).
“Further, those defendants established that they had no knowledge that the Games were being conducted in the park at issue, and thus they owed no duty to supervise the hammer throw competition (see generally Rhabb v New York City Hous. Auth., 41 N.Y.2d 200, 201-202, 359 N.E.2d 1335, 391 N.Y.S.2d 540; 1B NY PJI3d 1213 [2004]).”
Kreil v. County of Niagra et al., S.Ct.N.Y. 4th Dept., CA 04-00149, 6/14/04
Attorneys of Record: (for defendants) O’Shea, Reynolds & Cummings in Buffalo (Kimberly D. Gensler of counsel) for the county and Walsh & Wilkins in Buffalo (Robert H. Flynn of counsel) for Campbell. (for plaintiff) Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria in Buffalo (John A. Collins of Counsel).
