eThe Court of Appeals Continued the Primary Assumption of Risk Doctrine in Companion Decisions About Sports

The Court continued the doctrine because “athletic and recreative activities possess enormous social value, even while they involve significantly high-end risks,” and has “employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise.”

In Secky v. New Paltz Central School District, et al., 2023 N.Y. Slip Op 02142, Docket No. 24 (N.Y. April 27, 2023), the Court affirmed the Appellate Division order that granted defendant’s motion for summary judgment. The plaintiff in Secky was injured during a basketball drill where the players collided, and the plaintiff ultimately fell into the bleachers. The drill was a rebounding drill where the coach told the players that there were no boundaries and only major fouls would be called. The Court reasoned that plaintiff’s injury was one inherent in the sport of basketball, so he assumed the risk. The decision relied on previous holdings in stating, “the risk of collision [with an open and obvious item near a basketball court] was inherent in playing on that court”. The Court also stated that no issue of fact existed, and the drill assigned to the plaintiff did not unreasonably increase the risk of injury.

In comparison, the Court of Appeals decided that a material issue of fact for the jury existed in Grady v. Chenango Valley Central School District, et al., 2023 N.Y. Slip Op 02142, Docket No. 23 (N.Y. April 27, 2023). In this case, a baseball varsity team was practicing a fast moving, intricate drill. The drill involved one coach hitting a baseball to the third baseman who would throw it to the first baseman and another coach hitting a baseball to the shortstop who would throw it to the second baseman who would throw it to the “short” first baseman. The “short” first baseman and the actual first baseman were divided by a 7×7 foot protective screen. The plaintiff was a first baseman who was hurt when a baseball bypassed the “short” first baseman and the protective screen and hit him in the head. The Court stated that the defendant did not show that the plaintiff’s injury was a result of the inherent risk of baseball or due to “suboptimal playing conditions”. Furthermore, it found that the plaintiff raised a triable question of fact regarding the 7×7 foot screen. Whether the screen “was unique and created a dangerous condition over and above the usual dangers that are inherent in baseball” was held to be an issue of fact for the jury to decide. Likewise, the Court found that a triable question of fact existed as to whether plaintiff’s awareness of the risks was encompassed by the risks of this specific drill. The Court ruled that errant balls were a risk of baseball, but a jury should decide whether plaintiff’s injuries were a result of that inherent risk or whether “the risks were concealed or unreasonably enhanced” by the drill and use of the 7×7 screen.

Fourth Department Rules that Store Owed No Duty to Off-Duty Police Officer Injured by Co-Worker

In Brown v. Wal-Mart Stores, Inc., 2023 N.Y. Slip Op 02403, Docket No. 22-0145 (N.Y. App. Div. 4th Dept. May 5, 2023), plaintiff commenced this action seeking damages for injuries sustained at a store owned and operated by Wal-Mart Stores, Inc. Prior to the incident, police had been summoned to the store regarding a suspected theft. Plaintiff, who was an off-duty officer at the time of the incident, responded to the scene alongside several on-duty officers. The suspect fled and the on-duty officer and plaintiff pursued him. In the course of the pursuit, plaintiff, who was on foot, was struck by a vehicle operated by another police officer, causing plaintiff serious injuries.

The Supreme Court denied Wal-Mart Stores, Inc.’s motion to dismiss plaintiff’s complaint and a third-party counterclaim. The Fourth Department unanimously reversed the ruling that Wal-Mart Stores, Inc. owed no duty to the plaintiff and that the court thus erred in denying its motion. The Fourth Department disagreed with the plaintiff’s two theories of duty.

First, the Fourth Department found that there was no general duty to protect plaintiff from the dangers associated with the criminal activity and the alleged negligence of the Walmart employee in summoning the police as prior thefts “do not bear a sufficient relationship to what occurred in this instance—a negligent motor vehicle accident between plaintiff and his coworker—so as to create a duty flowing from Walmart to plaintiff.”

Second, the Fourth Department found that Wal-Mart Stores, Inc. did not assume a duty to the plaintiff as a result of an alleged violation of its own internal policies because the purpose of the internal policy was to protect “the physical well-being of [s]uspects, customers and Walmart associates.” Here, plaintiff – an off-duty police officer responding to an alleged criminal event who never entered the store – was not covered by the goal of the policies. Furthermore, the Fourth Department concluded that there was no basis that Walmart had any control over plaintiff or his coworker such that Walmart should be held to owe a duty to plaintiff.

Fourth Department Reaffirms Department Split that Violations Under 12 NYCRR 23-4.2 (k) are Insufficient to Support Labor Law §241(6) Claims

In Vicki v. City of Niagara Falls, et al., 215 A.D.3d 1285 (N.Y. App. Div. 4th Dept. 2023), the Fourth Department unanimously modified a Supreme Court decision to grant summary judgment in dismissing a Labor Law §241(6) claim. Petitioner filed a Labor Law §241(6) claim, among other claims, after sustaining an injury while working on a sewer replacement project where an unsecured spreader bar fell and injured plaintiff. Petitioner brought this Labor Law §241(6) claim based on 12 NYCRR 23-4.2 (k) which states that “persons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment.” However, the Fourth Department has repeatedly held, as has the First and Third Departments, that 12 NYCRR 23-4.2 (k) is not sufficiently specific to support a Labor Law §241(6) claim. The Fourth Department declined to adopt the contrary precedent of the Second Department.

Prepared by Jonathan D. Bogey

Daily Archives: June 5, 2023

June 2023 Legal News