E. Z., etc., et al., respondents, v. HEWLETT WOODMERE UNION FREE SCHOOL DISTRICT (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered November 23, 2020.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In May 2017, E.Z. (hereinafter the infant plaintiff) was a student at a middle school operated by the defendant Hewlett–Woodmere Union Free School District, and was a member of the middle school's track and field team.  On the date of the incident, the infant plaintiff was stretching in an area designated by her track coaches at the southwest corner of the multi-use field, which was in the center of the middle school's track.  The infant plaintiff was injured when she was struck in the face with an errant lacrosse ball that was thrown by a member of the school's lacrosse team, which, at the time, was practicing on the same field.  In July 2018, the infant plaintiff, by her mother, and her mother suing derivatively, commenced this action, inter alia, to recover damages for personal injuries, alleging that the defendant negligently caused the infant plaintiff's injuries.  Subsequently, the defendant moved for summary judgment dismissing the complaint.  By order entered November 23, 2020, the Supreme Court denied the defendant's motion.  The defendant appeals.

The defendant failed to meet its burden of establishing its prima facie entitlement to judgment as a matter of law dismissing the complaint.  Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from participation therein (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933;  Scally v. J.B., 187 A.D.3d 959, 960, 130 N.Y.S.3d 708).  “[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.  A participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced” (Grady v. Chenango Val. Cent. Sch. Dist., 40 N.Y.3d 89, 95, 194 N.Y.S.3d 716, 215 N.E.3d 1157 [citation and internal quotation marks omitted];  see Lungen v. Harbors Haverstraw Homeowners Assn., Inc., 206 A.D.3d 714, 715, 170 N.Y.S.3d 159).

Here, the defendant failed to establish, prima facie, that the doctrine of primary assumption of risk barred the plaintiffs’ recovery.  The defendant submitted evidence raising a triable issue of fact as to whether it unreasonably enhanced the risk of injuries by requiring the infant plaintiff to stretch on an area of the field while lacrosse practice was occurring nearby (see Buffalino v. XSport Fitness, 202 A.D.3d 902, 904, 163 N.Y.S.3d 208 ).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint, without regard to the sufficiency of the plaintiffs’ opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

BRATHWAITE NELSON, J.P., WOOTEN, FORD and TAYLOR, JJ., concur.