By Gregg Scharaga, of Havkins Rosenfeld Ritzert & Varriale
In two separate actions commenced on behalf of high school wrestlers stemming from the same wrestling tournament in February of 2011, the defendants’ motion for summary judgment were recently granted by Justice Diane Devlin of the Supreme Court, Erie County.
The plaintiffs allegedly contracted herpes gladiatorum and MRSA from another wrestler while participating/competing in a wrestling tournament at Starpoint High School, which was sponsored and coordinated by Section VI of the NYSPHSAA. Plaintiffs brought the lawsuit against Section VI of the NYSPHSAA and NYSPHSAA, Inc., as well as several School Districts, a Tournament Physician, the high school wrestler from whom plaintiffs allege they contracted the communicable skin diseases from, as well as the wrestler’s parents and his primary general practitioner.
In support of their motion for summary judgment, defendants argued that the plaintiffs’ assumption of the inherent, obvious risks of contracting communicable skin diseases including herpes gladiatorum and MRSA while wrestling, notwithstanding their awareness that could generally contract communicable skin diseases (but deny being aware the risk of contracting herpes), negated defendants’ putative duty of care. In arguing that communicable skin diseases, including herpes, are an inherent risk of the sport of wrestling, we highlighted the persuasive case law of Farrell v. Hochhauser, 65 A.D.3d 663, 884 N.Y.S.2d 261 (2d Dep’t 2009), the expert opinion and Affidavit of defendants’ wrestling and medical expert, Dr. BJ Anderson- which went unrefuted in opposition, as well as the testimony of the plaintiffs, given their admissions of their awareness of contracting certain communicable skin diseases in wrestling. Defendants presented the similarities between the two plaintiffs’ actions with the Farrell case, which in sum held that wrestlers assume the risk of contracting herpes gladiatorum, an inherent risk in the sport. Moreover, defendants demonstrated how each plaintiff must be held to assume the risk of contracting herpes gladiatorum, based upon the plaintiffs’ testimony, their age, experience, skill and knowledge.
Defendants further argued that the National Federation of High Schools Rules for Wrestling were abided by all defendants, in that the suspected student wrestler ruled out a contagious skin disease by using the mandatory Communicable Skin Disease Form, completed by a medical practitioner and reviewed by an on-site physician at a wrestling tournament- permitting him to wrestle.
In opposition, plaintiffs contended that defendants failed to warn plaintiffs of the specific risk of contracting herpes, even though record evidence is to the contrary. They also contended that herpes is in a “different class” of communicable skin diseases and should not be grouped together with the more common communicable skin diseases of ringworm and impetigo, usually associated with wrestling. On reply, defendants pointed out the inconsistencies in plaintiffs’ arguments and argued that the lack of a medical or liability expert to support plaintiffs’ contentions is fatal to their arguments. Upon hearing argument and reviewing all motion papers, the Judge, from the bench, issued an oral Decision, granting all of defendants’ motions- based upon the doctrine of assumption of the risk, the Appellate Division, Second Department’s holding in the Farrell case, the lack of an expert opinion proffered by plaintiffs, and the absence of a duty of care.
Biondo and Candino v. NYSPHSAA, Inc. and Section VI of the NYSPHSAA, et. al. Supreme Ct. Erie County; Index No.: 1443/12; 5/19/16
Attorneys of Record: (for defendant) Carla Varriale, Gregg Scharaga, and Billy Kim, of Havkins Rosenfeld Ritzert & Varriale.
