GUZMAN v. Rhodes School, et al., defendants. (2005)

In an action to recover damages for personal injuries, etc., the defendant Iceland appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), dated July 1, 2004, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs to the respondents.

 The sole contention raised by the appellant on this appeal is whether the action should have been dismissed against it “pursuant to the doctrine of plaintiff's assumption of the risk.”

 Application of the doctrine of assumption of risk “is justified when a consenting participant is aware of the risks;  has an appreciation of the nature of the risks;  and voluntarily assumes the risks” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   Awareness of risk, however, is not to be determined in a vacuum (see Maddox v. City of New York, 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487 N.E.2d 553).   Rather, it is to be assessed against the background of the skill and experience of the particular plaintiff (see Morgan v. State of New York, supra at 486, 662 N.Y.S.2d 421, 685 N.E.2d 202;  Maddox v. City of New York, supra at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553).

Under the circumstances of this case, it may not be determined as a matter of law that the infant “plaintiff was aware of, appreciated, and voluntarily assumed the risks” inherent in ice skating (Taylor v. Massapequa Intl. Little League, 261 A.D.2d 396, 398, 689 N.Y.S.2d 523;  see Bennett v. City of New York, 303 A.D.2d 614, 756 N.Y.S.2d 633).

The issue of any alleged negligence on the part of the defendant Iceland has not been raised on this appeal and, accordingly, we decline to reach that issue.   Moreover, we decline to grant the request of defendants Rhodes School and Hempstead U.F.S.D. # 1 to search the record and grant summary judgment in their favor.