KREIL v. COUNTY OF NIAGARA (2004)

 Plaintiff commenced this action to recover damages for injuries she sustained when she was struck by a hammer thrown by defendant Bill Campbell during the hammer throw competition of the Scottish Highland Games (Games).   Plaintiff was a spectator at the Games, which were conducted in a park owned by defendant County of Niagara and maintained by defendant Niagara County Department of Parks and Recreation (collectively, County defendants).   Supreme Court erred in denying the motion of Campbell seeking summary judgment dismissing the complaint against him based upon the doctrine of primary assumption of risk.  “In a suit against participants in a game, a spectator generally will be held to have assumed the risks inherent in the game, including the specific risk of being struck” (Sutfin v. Scheuer, 145 A.D.2d 946, 947, 536 N.Y.S.2d 320, affd. 74 N.Y.2d 697, 543 N.Y.S.2d 379, 541 N.E.2d 408;  see Honohan v. Turrone, 297 A.D.2d 705, 747 N.Y.S.2d 543;  Cuesta v. Immaculate Conception R.C. Church, 168 A.D.2d 411, 562 N.Y.S.2d 537).   Campbell submitted proof establishing that the risk of being struck by a thrown hammer is “inherent in the sport and ‘perfectly obvious' ” (Cannavale v. City of New York, 257 A.D.2d 462, 462, 683 N.Y.S.2d 528, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202), and there is no evidence that Campbell engaged in any “reckless, intentional or other risk-enhancing conduct not inherent in the activity” (Kaufman v. Hunter Mtn. Ski Bowl, 240 A.D.2d 371, 372, 657 N.Y.S.2d 773, lv. denied 91 N.Y.2d 805, 668 N.Y.S.2d 560, 691 N.E.2d 632).

 The court also erred in denying the cross motion of the County defendants seeking summary judgment dismissing the complaint against them.   Those defendants established that they owed no duty to protect plaintiff “from ‘the dangers inherent in the sport so far as they are obvious and necessary’ ” (Heard v. City of New York, 82 N.Y.2d 66, 71, 603 N.Y.S.2d 414, 623 N.E.2d 541, rearg. denied 82 N.Y.2d 889, 610 N.Y.S.2d 155, 632 N.E.2d 465, quoting Curcio v. City of New York, 275 N.Y. 20, 23-24, 9 N.E.2d 760, rearg. denied 276 N.Y. 610, 12 N.E.2d 600).   Further, those defendants established that they had no knowledge that the Games were being conducted in the park at issue, and thus they owed no duty to supervise the hammer throw competition (see generally Rhabb v. New York City Hous. Auth., 41 N.Y.2d 200, 201-202, 391 N.Y.S.2d 540, 359 N.E.2d 1335;  1B N.Y. PJI3d 1213 [2004] ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion and the cross motion are granted and the complaint against defendants Bill Campbell, County of Niagara and Niagara County Department of Parks and Recreation is dismissed.

MEMORANDUM: