Ice skater’s Claims Barred by Assumption of Risk

Jul 6, 2007

A New York state court has granted summary judgment to a Staten Island skating rink in a case where the plaintiff alleged that she was injured in a fall because of a “rut” in the ice surface.
The court ultimately determined specifically that the plaintiff assumed the risk of injury by voluntarily participating in ice skating, especially since she was aware of the rut and nonetheless continued to skate.
During a public skating session, the plaintiff was skating backwards, with her hands behind her back, and allegedly fell due to the presence of a rut in the ice surface, sustaining personal injuries. Prior to the accident, the plaintiff admitted that she observed the rutted and discolored area of ice located on a section of the skating surface when she initially began skating.
Thereafter, the plaintiff commenced a lawsuit against the skating rink alleging that it negligently and carelessly created or had notice that the ice skating rink became dangerous and defective, that it failed to timely use a Zamboni machine to smooth the surface and that it allowed “too many skaters” on the ice at one time for too long a period of time.
The skating rink moved for summary judgment, arguing primarily that the plaintiff assumed a known and obvious risk, negating any duty of care owed to the plaintiff. The skating rink further argued that the ruts in the ice surface constituted an open and obvious condition of which the plaintiff admitted she was aware. To support its defense of assumption of risk, the skating rink relied upon the plaintiff’s testimony that she had a wealth of ice skating experience and that the plaintiff admitted that she observed and complained of the rut, but continued to skate notwithstanding her knowledge of the alleged “condition.”
In opposition, the plaintiff contended that the doctrine of assumption of risk was inapplicable because the rutted surface was a condition that was “over and above” the usual dangers that are inherent in the sport of ice skating and unreasonably increased the risk of injury. The plaintiff also alleged that the absence of skating guards “aggravated” the conditions.
The court determined that the plaintiff, aware of the inherent risks involved in ice skating, assumed the risk of injury by voluntarily participating in the activity. “By engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport and generally flow from such participation.” Morgan v. State of New York, 90 N.Y.2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 (1997).
The court held that the “plaintiff was, by her own admission, an experienced ice skater, who continued to skate notwithstanding her actual knowledge of the alleged defects which she essentially characterized as open and obvious.” See Brugnatelli v. County of Westchester, 277 A.D.2d 191, 715 N.Y.S.2d 870 (2d Dep’t 2000) (plaintiff, “an experienced amateur ice hockey player, assumed the risks inherent in the sport, including those risks associated with any open and obvious conditions of the ice surface.”); Stanger v. M & T Pretzel, Inc., 5 A.D.3d 471, 772 N.Y.S.2d 571 (2d Dep’t 2004) (“…plaintiff, an experienced ice skater, voluntarily continued to skate despite the alleged defective condition of the skating rink surface, and thus assumed the risk.”)
Ditieri v. Staten Island Skating Pavilion, Inc; Supreme Court, Richmond County; Index No. 102005/2005; 5/29/07
Carla Varriale and Gregg Scharaga represented Staten Island Skating Pavilion, Inc


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