Assumption of Risk Defense Does Not Apply in Case of Student Hit With Ball During Track and Field Practice

In E.Z., Etc., et al v. Hewlett-Woodmere Union Free School District (County of Nassau, Index No. 610104/18), a defendant school district's efforts to dismiss a personal injury case, pre-trial, were unsuccessful as the Appellate Division, Second Department (decided on May 22, 2024) upheld that the "assumption of risk" defense does not apply.  The case arose when the plaintiff, a student of the middle school's track and field team, alleged injuries after she was stretching in an area designated by her track coaches (which was in the center of the middle school's track) and was thereafter struck in the face with an errant lacrosse ball that was thrown by a member of the school's lacrosse team (which, at the time, was practicing on the same field).  At some point after a lawsuit was filed, the defendant school district filed a motion for summary judgment, seeking a pre-trial dismissal of the case.  The trial court denied the motion, and the defendant appealed the decision.

The Appellate Division, Second Department held the following: "[I]t is not necessary to the application of assumption of risk that he injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.  A participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced [...]. Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk barred the plaintiff's recovery.  The defendant submitted evidence raising a triable issue of fact as to whether it unreasonably enhanced the risk of injuries by requiring the infant plaintiff to stretch on an area of the field while lacrosse practice was occurring nearby (see Buffalino v. Sport Fitness, 202 AD3d 902, 904).  Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).

Salvatore R. Marino, Esq.

Arbitrator's Award Vacated Due to Lack of Evidentiary Support

In In the Matter of Richardson v.  Markovich (County of Nassau, Index No. 600363/21), the Appellate Division, Second Department (decided on May 22, 2024) affirmed a lower court's Order to vacate an arbitrator's decision.  The case arose in 2016, when the plaintiff allegedly sustained injuries after the defendant's vehicle struck the rear of a vehicle operated by the plaintiff.  At some point after a lawsuit was filed, the parties decided to arbitrate the case; and after the arbitration hearing, the Arbitrator awarded no amount to the plaintiff as the arbitrator determined that "'[t]he evidence fails to disclose that claimant [plaintiff] sustained a serious injury' because she 'failed to distinguish between injuries from the two prior accidents and the [2016] accident].'"  Thereafter, the plaintiff commenced a proceeding pursuant to CPLR 7511 to vacate the arbitration award.  The Supreme Court granted the petition and vacated the award; and the defendant appealed.

The Appellate Division, Second Department affirmed the lower court's order, and the decision included the following: "The arbitrator issued an award in [defendant's] favor upon a finding that [plaintiff] failed to distinguish between injuries that she purportedly sustained in accidents occurring in 1994 and 1999 and injuries she sustained in the 2016 accident.  However, on the issue of damages, [plaintiff] submitted, inter alia, medical reports from her treating physician explaining that [plaintiff] had no history of recent injury and casually relating her claimed injuries to the 2016 accident.  [Plaintiff's] deposition testimony established that, although she did not remember which body parts, if any, were injured in the 1994 and 1999 accidents, those accidents did not result in any injury to the relevant body parts and that, on both occasions, she returned to work.  [Defendant] did not submit, and the arbitrator did not consider, any other evidence as to [plaintiff's] purported prior injuries.  Accordingly, there was 'no proof whatever' to justify the arbitrator's award."

Salvatore R. Marino, Esq.

Case Against County Dismissed as Defect Did Not Arise Immediately After Work Performed

In McConnell v. County of Nassau, et al (County of Nassau, Index No. 605166/14), a plaintiff's slip-and-fall case was dismissed by the Appellate Division, Second Department (on June 5, 2024) - despite that plaintiff initially winning his case at trial.  The case arose after the plaintiff allegedly slipped, fell, and sustained injuries on July 4, 2013  at premises owned by the defendant County of Nassau.  A lawsuit was filed thereafter, and the plaintiff's theory of liability at trial was that he slipped and fell on a defective painted depth marker, which was a sign painted onto the pool deck indicating the depth of the water at that location (as, he testified at trial that after he fell, he stood up and ran his foot along the painted area and it felt like "a sheet of ice").    The evidence adduced at trial showed that depth markers were applied to the pool deck by the County between 2006 and 2008 using a mixture of sand and paint.  Further, the plaintiff's expert testified, among other things, that the County's method of sprinkling sand on top of the paint was not the safest way to paint the depth markers because this practice did not ensure equal distribution of the sand or that the sand would remain permanently on the paint; and that the best method of painting the depth markers was utilizing a paint that already had sand mixed into the paint. 

At the conclusion of the trial on the issue of liability, the jury returned a verdict, finding that the County was negligent and that its negligence was a substantial factor in causing the accident.  Thereafter, the County made an application, in effect, pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability and for judgment as a matter of law dismissing the complaint insofar as asserted against it.  The Court denied the application.  After a jury returned a verdict in favor of the plaintiff and against the County on the issue of damages, the Court issued a judgment in favor of the plaintiff and against the County in the principal sum of $170,000.  The County appealed.

On appeal, the Appellate Division, Second Department revered the trial court's decision, thereby dismissing the plaintiff's case.  The Appellate Division noted that there was no prior written notice demonstrated with respect to the alleged defect, and that no exceptions to this requirement applied, such as creation of the defect.  Particularly, the Appellate Division held the following: "Although the plaintiff's expert testified at trial that the County's method of applying depth markers was inferior to the practice of using a paint that already contained sand, the plaintiff failed to present any evidence demonstrating that the County's application of the depth markers on the pool deck immediately resulted in the existence of a dangerous condition[...]The plaintiff's expert testimony indicated that over time, weather conditions, such as rain, could cause the sand in the paint to degrade and that the depth markers should have been repainted approximately every two to three years.  The plaintiff's evidence at trial, at most, established that environmental effects over time created the alleged dangerous condition, which was insufficient to impose liability on the County (see Loghry v. Village of Scarsdale, 149 AD3d 716).

Salvatore R. Marino, Esq.

NYS Court of Claims, Bicycling, and the "Assumption of Risk" Defense

In Alfieri v. State of New York, 2024 Slip Op. 00886 (decided on February 21, 2024), the Appellate Division, Second Department reversed a NYS Court of Claims decision to dismiss an injured claimant's case - as the appellate court held, among other things, that the Court of Claims incorrectly applied the "assumption of risk" doctrine/defense to the case.

The case arose after the claimant commenced a claim in the NYS Court of Claims (a court which entertains just lawsuits, or "claims," against the State of New York).  The claim was against the State of New York, and it requested to recover damages for personal injuries allegedly sustained when the claimant fell from his bicycle as he rode on a paved path around Rockland Lake in Rockland Lake State Park.  At a non-jury trial (as the Court of Claims does not permit jury trials - but rather only "bench-trials," or trials in which a NYS/Court of Claims judge decides matters of both law and fact involving a NYS defendant), the claimant testified that he fell when his bicycle ran into loose asphalt at the end of a crack in an asphalt patch as he attempted to maneuver to the edge of the path to go around two people walking on the path.  After the bench-trial, the Court of Claims justice found that the claim was barred by the doctrine of primary assumption of risk; and thereafter, the court issued a judgment dismissed the claim. The claimant thereafter appealed.

The Appellate Division, Second Department, revered the Court of Claims' decision - thereby restoring the case (and remitting the case back to the Court of Claims for a decision on those issues left undecided as a result of its determination), holding, among other things, the following: "Here, the Court of Claims erred in determining that the path where the claimant's accident occurred was a designated venue used specifically for bicycling.  When the injury occurred, the claimant was engaged in a recreational bicycle ride on a paved, public surface.  The claimant was not participating in an organized group event or sponsored ride.  The claimant testified at trial that he could both bike and walk the path.  That, in addition to the presence of pedestrians who precipitated the accident, demonstrated that the path was for public use, and not a designated venue for bicycling.  Therefore, the claimant, by participating in recreational bicycling, cannot be said to have assumed the risk of being injured as a result of an alleged defective condition on the paved path, and therefore, the doctrine of primary assumption of risk is inapplicable to the claimant's activity...."

Salvatore R. Marino, Esq.

"Serious Injury" Need Not Be "Permanent" For Auto-Accident Case

In Strong v. Sigman, et al, 2024 N.Y. Slip Op. 1028 (decided on February 28, 2024), the Appellate Division, Second Department reversed a trial court's granting of a defendants' summary judgment motion - thereby restoring the case - as the appellate court found, among other things, that triable issues of fact existed with respect to whether the plaintiff's non-permanent injury constituted a "serious injury" by way of Article 51 of the NYS Insurance Law (also known as the "No-Fault serious injury threshold law").  

The case arose due to an automobile accident between the plaintiff and the defendants.  At some point after the accident, the plaintiff filed suit against the defendants, and set forth allegations including that the defendants were negligent and caused the accident, and that the plaintiff sustained injuries/damages.  During the pre-trial process, the defendants filed a motion for summary judgment which requested dismissal of the case as, the defendants' contended, the plaintiff's injuries were not "permanent" and therefore no "serious injuries" existed as a matter of law.  A Queens County Supreme Court Justice agreed with the defendants' position, and granted the motion, and the plaintiff thereby appealed.

The Appellate Division, Second Department, reversed - thereby restoring the case - and the decision included the following: "In opposition, however, the plaintiff raised a triable issue of fact as to whether she sustained a serious injury to the cervical and lumbar regions of her spine under the significant limitation of use category of Insurance Law 5102(d) [citing Perl v. Meher, 18 NY3d 208].  Contrary to the defendants' contention, Insurance Law 5102(d) does not expressly set forth any temporal requirement for the significant limitation of use category and a 'significant limitation' need not be permanent in order to constitute a serious injury [citing Vasquez v. Almanzar, 107 AD3d 538; Estrella v. GEICO Ins. Co., 102 AD3d 730]."  

Salvatore R. Marino, Esq.

Questions of Fact Exist Regarding Ice Formation Prior to Snow Storm

In Townsend v. City of New York, et al (Index No. 711239/17, Queens County), the Appellate Division, Second Department recently affirmed a lower court's denial of a defendant's motion for summary judgment in a slip-and-fall due to ice case.  The case arose in January 2017, when the plaintiff allegedly slipped and fell on a walkway at the Queensbridge Houses South, in Long Island City.  At his 50-H hearings, the plaintiff testified that he fell due to ice; and at his deposition during the discovery process, he testified that the hazard was "dirty, crunchy" snow.  It is undisputed that at the time the plaintiff fell, it was snowing, with at least some snow accumulated on the ground.  At some point during the litigation, the defense filed a motion for summary judgment, seeking to dismiss the case by way of the "storm in progress" doctrine (which, if accepted by the Court, could result in a case dismissal).  The motion was denied, and the defense appealed.

The Appellate Division, Second Department notes applicable case law, including a case recently handled by Marino & Marino, P.C. titled Maharaj v. Kreidenweis (in which this firm, in March 2023, successfully defeated on appeal a motion for summary judgment from a defendant property owner in a slip-and-fall/ice case), as the Court stated the following: "As the proponent...of the motion for summary judgment, the defendant...had the burden of establishing, prima facia, that [it] neither created the icy condition nor had actual or constructive notice of its existence for a sufficient length of time to discovery and remedy it [citing Maharaj v. Kreidenweis, 214 AD3d 717, 719]."

The Court then goes on to hold that the lower court properly denied the defendants' motion - as even though the defense properly satisfies their summary judgment burden, the plaintiff, in opposition, raised triable issues of fact.  Particularly, the Court held: "An affidavit of the plaintiff's expert, in combination with the plaintiff's testimony and the sworn statement of the sole witness to the accident, was sufficient to raise a triable issue of fact as to whether the plaintiff slipped on ice, rather than snow, and whether such ice formed prior to the storm such that the defendant had a duty to make the path safe prior to the alleged time of the plaintiff's accident."

Salvatore R. Marino, Esq.

School District/Negligent Supervision Case Dismissed

In C.P.G., Etc., et al v. Uniondale School District (Index No. 612957/19, Nassau County), an infant/minor plaintiff, by way of his father, brought a lawsuit against a school district alleging, among other things, that the plaintiff sustained injuries due to negligent supervision by way of the school's employees.  Particularly, the action alleged that the infant plaintiff, who was an eighth grade student at a school located within the defendant Uniondale School District, was injured while playing a "pickup" game of soccer on a field at Turtle Hook Middle School during a school-sponsored event; it is further alleged that the infant plaintiff was injured due to dangerous conditions on the field - including, it is claimed, pebbles and wet grass - and negligent supervision by the school district's employees.  At some point during the litigation, the defendant school district moved for summary judgment (seeking dismissal of the case), and the trial court Judge denied the motion.

On appeal, however, the Appellate Division, Second Department reversed the lower court's decision - which, in effect, dismissed the plaintiff's case.  The basis of the appellate decision is the application of the doctrine of "assumption of risk," as the Court notes, "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation...[and] Participants are not deemed to have assumed the risk of reckless or intentional conduct, or concealed or unreasonably increased risks."  The Court then holds that in the instant case, "...merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision"; and "To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields."  

The Court further holds that the plaintiff fails to raise a triable issue of fact (which, in turn, allows the Court to grant the defendants' motion) - however, no explanation is provided by the Court as to why this is (such as what arguments and/or evidence was submitted by the plaintiff in opposition to the motion).  Absent from the appellate decision as well is a discussion with regards to the actual supervision and monitoring, if any, by the school district teachers/employees in relation to the infant plaintiff (which is arguably relevant, to an extent; as, for example, if the employees are not watching the infant plaintiff at all, and if the employees knew or should have known that an injury is likely to occur given the underlying facts and circumstances, then perhaps issues of fact could exist).

Salvatore R. Marino, Esq.