LICCIONE v. GEARING (1998)

Plaintiff commenced this action alleging that she was injured when she fell from a trampoline owned by defendant Thomas Gearing, Jr., located in the back yard of the residence owned by defendant Thomas Gearing, Sr. The trampoline was manufactured by defendant Jumpking, Inc. (Jumpking).  The Gearings appeal from an order denying their motion for summary judgment dismissing the complaint against them (appeal No. 1).   Jumpking appeals from an order denying its motion for summary judgment dismissing the complaint against it (appeal No. 2).

 Supreme Court erred in denying the Gearings' motion.   The Gearings established their entitlement to judgment as a matter of law by establishing that plaintiff, who was 19 years old at the time of the incident, was of sufficient age, education and experience to assume the risks of jumping on the trampoline (see, Morgan v. State, 90 N.Y.2d 471, 485-486, 662 N.Y.S.2d 421, 685 N.E.2d 202).   Plaintiff failed to raise a triable issue of fact whether “double jumping” is “unique and created a dangerous condition over and above the usual dangers that are inherent in the sport” (Owen v. R.J.S. Safety Equip., 79 N.Y.2d 967, 970, 582 N.Y.S.2d 998, 591 N.E.2d 1184;  see, Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  Weller v. Colleges of the Senecas, 217 A.D.2d 280, 283-284, 635 N.Y.S.2d 990;  see also, Bierach v. Nichols, 248 A.D.2d 916, 669 N.Y.S.2d 988 [assumed risk of eye injury by throwing apples];  Simoneau v. State of New York, 248 A.D.2d 865, 669 N.Y.S.2d 972 [assumed risk of being hit by chair lift while downhill skiing];  Griffin v. Lardo, 247 A.D.2d 825, 668 N.Y.S.2d 837, lv. denied 91 N.Y.2d 814, 676 N.Y.S.2d 127, 698 N.E.2d 956 [assumed risk of being hit in head with golf club] ).

 The court also erred in denying Jumpking's motion.   With respect to the first cause of action, which alleges that Jumpking failed to warn of the dangers of using its trampoline, Jumpking established as a matter of law that its warnings were adequate to advise users of both the inherent and common risks associated with the use of the trampoline (see, Carbone v. Alagna, 239 A.D.2d 454, 456, 658 N.Y.S.2d 48), and plaintiff failed to raise a triable issue of fact.   In any event, Jumpking further established that any failure to warn was not a proximate cause of plaintiff's injuries (see, Kotarski v. Kotecki & Sons, 239 A.D.2d 909, 661 N.Y.S.2d 804;  Belling v. Haugh's Pools, 126 A.D.2d 958, 511 N.Y.S.2d 732, lv. denied 70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550, rearg. dismissed 70 N.Y.2d 748, 519 N.Y.S.2d 1035, 514 N.E.2d 393).

 Similarly, Jumpking established its entitlement to judgment as a matter of law with respect to the allegations of defective manufacture, design and construction of the trampoline.   By submitting an affidavit of an expert that was plainly conclusory, plaintiff failed to raise a triable issue of fact in opposition to Jumpking's motion (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Bouter v. Durand-Wayland, Inc., 221 A.D.2d 902, 634 N.Y.S.2d 597;  Moore v. Deere & Co., 195 A.D.2d 1044, 600 N.Y.S.2d 534, lv. denied 82 N.Y.2d 663, 610 N.Y.S.2d 150, 632 N.E.2d 460).

Finally, Jumpking established its entitlement to judgment as a matter of law with respect to the breach of warranty causes of action, and plaintiff failed to raise a triable issue of fact.

Order unanimously reversed on the law without costs, motion granted and complaint against defendants Thomas Gearing, Sr., and Thomas Gearing, Jr., dismissed.

MEMORANDUM: