A New York state court has granted summary judgment to a public ice rink in a case where a skater sued the ice rink for negligence after his skate got caught in a hole, allegedly causing an injury.
In so ruling, the court reasoned that the claim fell “squarely within the doctrine of Primary Assumption of Risk,” especially since the plaintiff was aware of the deformity of the ice rink before he even took to the ice.
The incident occurred on November 15, 2003. After the plaintiff and his girlfriend arrived at Bear Mountain State Park, they ate lunch and then proceeded to the ice skating rink, where they purchased tickets and rented ice skates.
After the plaintiff “had been skating for thirty to forty minutes and had skated around the rink about nine times, he fell in a hole (that was) approximately two feet long, one foot wide, more than two inches deep and filled with slushy ice,” wrote the court. The judge added that the plaintiff “observed the slushy area as he entered the rink but was not deterred from skating. Nor did he feel it necessary to notify anyone of the condition. In addition, claimant never reported his fall to any employee at Bear Mountain State Park nor did he file any contemporaneous accident report.”
The plaintiff sued, claiming “the defendant was negligent in its maintenance of the ice skating rink in allowing the surface of the rink at the area of claimant’s fall to ‘deteriorate into an unsafe, slushy and rutted condition’ creating a dangerous, defective and hazardous condition.”
The defendant moved for summary judgment, spawning the instant opinion.
“The State’s burden on this motion is to establish that claimant was aware of the defective or dangerous condition with its resultant risk,” held the court. “It is not necessary that the State establish that claimant foresaw the exact manner in which the injury occurred (Lamey v Foley, 188 A.D.2d, supra at 164, 594 N.Y.S.2d 490). Further, it has been held that so long as a claimant is aware of the potential for injury inherent in the hazard, claimant may be deemed to have assumed the risk of such injury (Maddox v City of New York, 66 N.Y.2d 270, 278, 487 N.E.2d 553, 496 N.Y.S.2d 726, supra).”
On that point, the state claimed that the plaintiff was aware of the defect which caused him to fall and thus assumed the risk he might be injured.
“Having reviewed excerpts of claimant’s deposition testimony, the Court must agree with the State’s conclusion. Claimant testified that he saw a 2′ x 1′ slushy area compared to the rest of the ice when he entered the rink for the first time. While he was not specifically asked, nor did he state, whether he was aware of the hole into which he allegedly stepped, it is clear that the hole was within this slushy area, which would presumably be avoidable by a skater, particularly one who had successfully circumnavigated the rink nine times in the immediately preceding hour.
“Defendant has established that claimant was aware of the existence of the slushy area and its attendant risks from the time he first entered the skating area. Claimant submitted no evidence explaining why he chose to skate through the slushy area despite his continuous awareness of both its existence and potential for risk of a fall. The Court believes that claimant is responsible for his own decision made despite this foreknowledge. As a result, the Court finds this matter to be squarely within the doctrine of Primary Assumption of Risk as discussed, supra, and the defendant’s motion is granted.”
Robert Josefs v. The State of New York; Ct. of Claims N. Y.; 2006 NY Slip Op 51395U; 2006 N.Y. Misc. LEXIS 1915; 7/15/06
Attorneys of Record: (for claimant) Jon F. Epstein of Shaevitz & Shaevitz. (for defendant) Judith C. McCarthy, AAG representing Hon. Eliot Spitzer, Attorney General of the State of New York
