LOMEDICO 14 v. Wal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust, Defendants-Respondents.  (Appeal No. 1.) (2008)

Plaintiffs commenced this action seeking damages for injuries sustained by their son during a fight with other high school students in a parking lot.   Defendant Herkimer County Industrial Development Agency (IDA) owned the property on which the parking lot was located, and IDA leased the property to defendant Widewaters Herkimer Company, LLC (Widewaters).   Widewaters in turn leased the parking lot and a store on the property to defendant Wal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust (collectively, Wal-Mart defendants).

 Addressing first the order in appeal No. 2, we conclude that Supreme Court properly granted the motion of IDA and Widewaters seeking summary judgment dismissing the complaint against them.   Those defendants met their initial burden by establishing that they were out-of-possession landlords who had relinquished control of the parking lot to the Wal-Mart defendants and did not create a dangerous condition, and they thus established that they owed no duty to plaintiffs' son (see Ferro v. Burton, 45 A.D.3d 1454, 846 N.Y.S.2d 850;  Schwegler v. City of Niagara Falls, 21 A.D.3d 1268, 801 N.Y.S.2d 873).   Plaintiffs failed to raise a triable issue of fact in opposition (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 With respect to the order in appeal No. 1, we conclude that the court also properly granted the motion of the Wal-Mart defendants seeking summary judgment dismissing the complaint against them.  “[A] possessor of land [, including] a leaseholder, is not an insurer of [a] visitor's safety.   Thus, even where there is an extensive history of criminal conduct on the premises, the possessor cannot be held to a duty to take protective measures unless it is shown that [the possessor] either knows or has reason to know from past experience ‘that there is a likelihood of conduct on the part of third persons ․ which is likely to endanger the safety of the visitor’ ” (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 519, 429 N.Y.S.2d 606, 407 N.E.2d 451).

Here, the Wal-Mart defendants “established as a matter of law that [they were] unaware of any facts that would put [them] on notice that an assault would occur in [their] parking lot” (Arcuri v. Sequin, 244 A.D.2d 972, 665 N.Y.S.2d 157).   Those defendants established that there was no history of prior assaults or other violent crimes in the parking lot, nor was there any history of students gathering to fight.   Thus, the Wal-Mart defendants established that “the criminal act [in question] ․ was not reasonably foreseeable and thus [they were] not under a duty to perceive and guard against it” (Golombek v. Marine Midland Bank, 193 A.D.2d 1113, 1114, 598 N.Y.S.2d 891).

 In any event, even assuming, arguendo, that the Wal-Mart defendants owed a duty to plaintiffs' son, we conclude that those defendants established as a matter of law that the action is barred based on the primary assumption of risk by plaintiffs' son.  “The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries ․ and applies to[, inter alia,] ․ the voluntary participation in nonsporting activities, both proper and improper, which involve an elevated risk of danger” (Farnham v. Meder, 45 A.D.3d 1315, 1316, 845 N.Y.S.2d 619;  see Weller v. Colleges of the Senecas, 217 A.D.2d 280, 283-284, 635 N.Y.S.2d 990).  “As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  see Lamey v. Foley, 188 A.D.2d 157, 164, 594 N.Y.S.2d 490).   However, “it is not necessary to demonstrate that the [individual] foresaw the exact manner in which his [or her] injury occurred” (Lamey, 188 A.D.2d at 164, 594 N.Y.S.2d 490).   Here, the Wal-Mart defendants established that plaintiffs' son, a high school student, was a knowing and voluntary participant in the fight (see Turcotte, 68 N.Y.2d at 437, 510 N.Y.S.2d 49, 502 N.E.2d 964;  Lamey, 188 A.D.2d at 164, 594 N.Y.S.2d 490), and that he assumed the risks that were “known, apparent or reasonably foreseeable consequences of the participation” (Turcotte, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  see Lamey, 188 A.D.2d at 164, 594 N.Y.S.2d 490).   Those risks necessarily included physical injury to the participants in the fight, including plaintiffs' son (see Ruggerio v. Board of Educ. of City of Jamestown, 31 A.D.2d 884, 298 N.Y.S.2d 149, affd. 26 N.Y.2d 849, 309 N.Y.S.2d 596, 258 N.E.2d 92).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: