Summing Up
March 2018 

Appellate Division Reverses a Finding of Liability Pursuant to Labor Law §240(1) in a Case Involving a Fall from a Ladder

In Bonczar v. American Multi-Cinema Inc., et al, (4th Dept., February 2, 2018), the plaintiff commenced a personal injury action for injuries he alleged to have sustained after falling from a ladder in the lobby of a movie theater owned by the defendant. At the time of the accident, he was updated a fire alarm system in the course of his employment.
 
Following discovery, plaintiff moved for partial summary judgment on the issue of liability under Labor Law §240(1). In opposition to plaintiff's motion, the defendant submitted proof establishing that plaintiff did not know why the ladder wobbled and/or shifted prior to his fall, and that plaintiff may not have checked the position of the ladder or the ladder's locking mechanism prior to using the ladder. 
  
The trial court granted plaintiff's motion and the defendant appealed. The Appellate Division, Fourth Department, reversed the decision of the trial court and denied plaintiff's motion, holding that the evidence before it was sufficient to raise a plausible view that there was no statutory violation and that the plaintiff's own actions were the sole proximate cause of the accident.  
 
Issue of Fact in Rear-End Accident Precludes SummaryJudgment

In Benz v. Calder (4th Dept., February 9, 2018), the plaintiff was allegedly injured after she rear-ended by a vehicle being driven by the defendant. The defendant moved for summary judgment on the issue of liability, arguing that the plaintiff's negligence in rear-ending the defendant's vehicle was the sole proximate cause of the accident. The motion was denied at the trial court, and an appeal to the Fourth Department ensued.

The Appellate Division held that the Supreme Court properly denied the defendant's motion. In opposition, plaintiff submitted proof that the defendant's vehicle came to a sudden stop in front of her. The Court held that this testimony amounted to a non-negligent explanation of the accident which precluded summary judgment in favor of the defendant.  


Motion to Dismiss Complaint on the Grounds that Plaintiff's Causes of Action are Barred by Primary Assumption of the Risk is Denied

 In Tauro v. Gait (4th Dept., February 9, 2018), plaintiff was a member of the women's varsity lacrosse team at defendant Syracuse University. As a member of the team, she signed a waiver which stated that she was "fully aware...that...participation [in lacrosse] involves risk of injury...These risks can come from causes which are many and varied...and may include negligent acts or omissions of others." She further acknowledged in the waiver that she "accept[ed], and assume[d] all such risks, whether or not presently foreseeable and whether or not caused by the negligent acts or omissions of others, and elect[ed] voluntarily to participate in intercollegiate athletics at Syracuse University." 
     
Plaintiff commenced this action as the result of injuries she alleged to have sustained when she was struck in the head by a lacrosse ball thrown by her coach, defendant Gait. The injury occurred during a ground ball post drill, during which Gait and other coaches rolled lacrosse balls along the ground to the players. Instead of the ground ball that she was expecting, defendant Gait, without warning, threw the ball in the air towards plaintiff's head.  
 
 Following the commencement of the lawsuit, the defendants moved to dismiss the plaintiff's complaint pursuant to CPLR 3211, arguing that the waiver plaintiff signed constituted documentary evidence that plaintiff fully understood and assumed the risk that she could be injured while participating the in the lacrosse program. In opposition, plaintiff submitted an affidavit alleging that defendant Gait's actions in throwing the ball through the air were inconsistent with the drill and, as such, his actions were "grossly negligent and extremely reckless." The defendants' motion was denied, and the defendants appealed to the Fourth Department.   
 
The Appellate Division, Fourth Department, affirmed the denial of the defendants' motion, holding that the waiver relied upon by the defendants was not enforceable with respect to "grossly negligent and extremely reckless" conduct as alleged by the plaintiff. The Court furthermore held that the plaintiff's action was not barred by the doctrine of primary assumption of the risk at this juncture of the lawsuit given plaintiff's allegations of gross negligence and reckless conduct and the requirement that such allegations be afforded the benefit of every possible favorable inference. 
 

Doctrine of Primary Assumption of the Risk Does NotBar Action Alleging Injuries During Sailing Lesson

  The plaintiff in Ulin v. Hobart and William Smith Colleges (4th Dept., February 9, 2018) commenced this action for injuries she sustained while sailing on Seneca Lake during a beginner sailing course offered by the defendant and taught by the defendant's agents. During class, the boat that the plaintiff was sailing capsized. She was struck in the head by the boom of the boat during her efforts to right the capsized boat.

Defendant moved for summary judgment, arguing that the complaint should be dismissed based on plaintiff's assumption of the risk. The Court denied defendant's motion, holding that even if the defendant established that plaintiff assumed all risks inherent in sailing, a triable issue of fact existed as the whether the defendant unreasonably increased the risks associated with sailing by failing to provide plaintiff with any capsize recovery training and by allowing plaintiff to go sailing under questionable weather conditions.  
  

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