LARSON v. CUBA RUSHFORD CENTRAL SCHOOL DISTRICT (2010)

 Plaintiff commenced this action seeking damages for injuries sustained by her daughter when she fell while performing a stunt during cheerleading practice.   Following discovery, defendants moved for summary judgment dismissing the complaint based on the doctrine of primary assumption of the risk.   We conclude that Supreme Court properly denied the motion.   As defendants correctly contend, it is well established that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   In addition, cheerleading is the type of athletic activity to which the doctrine of primary assumption of the risk applies (see e.g. Williams v. Clinton Cent. School Dist., 59 A.D.3d 938, 872 N.Y.S.2d 262;  Sheehan v. Hicksville Union Free School Dist., 229 A.D.2d 1026, 645 N.Y.S.2d 181).   That doctrine does not, however, shield defendants from liability for “exposing plaintiff['s daughter] to unreasonably increased risks of injury” (Sheehan, 229 A.D.2d 1026, 645 N.Y.S.2d 181).

 Defendants met their initial burden of establishing that the action is barred based on assumption of the risk by plaintiff's daughter, inasmuch as they submitted evidence demonstrating that she voluntarily participated in the stunt and that the risk of falling during the stunt was obvious.   Nevertheless, plaintiff raised a triable issue of fact sufficient to defeat the motion (see Ballou v. Ravena–Coeymans–Selkirk School Dist., 72 A.D.3d 1323, 1325–1326, 898 N.Y.S.2d 358;  Sheehan, 229 A.D.2d 1026, 645 N.Y.S.2d 181).   Plaintiff presented evidence with respect to the inexperience of defendant Kari Feuchter as a cheerleading coach, as well as her alleged failure to utilize proper coaching techniques and to monitor the activities of the team members during practice.   In our view, that evidence was sufficient to raise a triable issue of fact whether Feuchter “failed to provide proper supervision of the cheerleading activities, thereby exposing plaintiff['s daughter] to unreasonably increased risks of injury” (Sheehan, 229 A.D.2d 1026, 645 N.Y.S.2d 181;  see Muller v. Spencerport Cent. School Dist., 55 A.D.3d 1388, 865 N.Y.S.2d 455;  Garman v. East Rochester School Dist., 46 A.D.3d 1354, 850 N.Y.S.2d 306).   It will thus be for the trier of fact to determine whether the doctrine of primary assumption of risk bars plaintiff's claims.

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

MEMORANDUM: