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.