GREIBER v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant National Collegiate Athletic Association appeals from an order of the Supreme Court, Nassau County (Robert A. McDonald, J.), entered December 3, 2021.  The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant National Collegiate Athletic Association for summary judgment dismissing the amended complaint insofar as asserted against it is granted.

In March 2013 and January 2014, the plaintiff, a collegiate lacrosse player, allegedly suffered concussions during team practice, first when she was struck in the head by a lacrosse ball and then when she collided with another player.  On January 11, 2017, the plaintiff commenced this action to recover damages for personal injuries against, among others, the defendant National Collegiate Athletic Association (hereinafter the NCAA).  Thereafter, the NCAA moved for summary judgment dismissing the amended complaint insofar as asserted against it.  In an order entered December 3, 2021, the Supreme Court, inter alia, denied the NCAA's motion.  The NCAA appeals.

“The doctrine of primary assumption of risk provides that ‘by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation’ ” (Herrera v. Town of Kent, 241 A.D.3d 658, 660, 239 N.Y.S.3d 273, quoting Balgley v. City of New York, 218 A.D.3d 427, 427, 193 N.Y.S.3d 55).  “ ‘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 participation, but not to unassumed, concealed, or unreasonably increased risks’ ” (Mazze v. Manhattanville Coll., 226 A.D.3d 887, 888, 209 N.Y.S.3d 159, quoting Charles v. Uniondale School Dist. Bd. of Educ., 91 A.D.3d 805, 805, 937 N.Y.S.2d 275).  “Assumption of the risk is not an absolute defense but rather a measure of the defendant's duty of care, which is to exercise care to make the conditions as safe as they appear to be.  If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and [the] defendant has performed its duty” (Cannizzaro v. County of Westchester, 212 A.D.3d 702, 703, 181 N.Y.S.3d 632 [internal quotation marks omitted];  see Maharaj v. City of New York, 200 A.D.3d 769, 770, 157 N.Y.S.3d 534, affd 44 N.Y.3d 964, 241 N.Y.S.3d 117, 267 N.E.3d 1186).  “The purpose served by eliminating the duty to protect a plaintiff from such inherent risks is to advance a social policy to facilitate free and vigorous participation in athletic activities, which have enormous social value” (Annitto v. Smithtown Cent. Sch. Dist., 210 A.D.3d 615, 618, 177 N.Y.S.3d 620 [citations and internal quotation marks omitted]), and “to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise” (Grady v. Chenango Val. Cent. Sch. Dist., 40 N.Y.3d 89, 94–95, 194 N.Y.S.3d 716, 215 N.E.3d 1157 [internal quotation marks omitted];  see Katleski v. Cazenovia Golf Club, Inc., ––– N.Y.3d ––––, ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 02178, *2).

The NCAA established its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it based upon the doctrine of primary assumption of risk.  In support of its motion, the NCAA submitted, among other things, an NCAA concussion fact sheet intended for student athletes, informed consent forms, which were executed by the plaintiff and emphasize the severity of concussions, an NCAA rule book and sports medicine handbook for 2012–2013, which discuss concussion risks, various studies and articles indicating that concussions occur with some frequency in women's lacrosse, and a transcript of the plaintiff's deposition testimony, which indicated that she knew that women's lacrosse players were at risk of suffering concussions.  The amended complaint itself includes allegations that the plaintiff had played organized lacrosse since the age of seven, played lacrosse on her high school team, and was recruited at Hofstra University on an athletic scholarship specifically to play collegiate lacrosse.

Thus, the NCAA demonstrated, prima facie, that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from unassumed, concealed, or unreasonably increased risks, and that by voluntarily participating in collegiate women's lacrosse despite her knowledge that doing so carried a risk of suffering concussions, the plaintiff assumed the risk of injury that was inherent in the sport (see Charles v. Uniondale School Dist. Bd. of Educ., 91 A.D.3d at 805–806, 937 N.Y.S.2d 275;  Cusano v. Board of Educ. of Liverpool Cent. School Dist., 275 A.D.2d 1026, 1026, 713 N.Y.S.2d 383;  cf.  Calderone v. Molloy Coll., 177 A.D.3d 692, 694, 112 N.Y.S.3d 191).

In opposition to the NCAA's prima facie showing of its entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it based upon the doctrine of primary assumption of risk, the plaintiff failed to raise a triable issue of fact.  Contrary to the plaintiff's contention, the NCAA did not unreasonably increase the risk of injury to players above what is customary in the sport by failing to alter the customary rule prohibiting players from wearing hard helmets (see Katleski v. Cazenovia Golf Club, Inc., ––– N.Y.3d at –––– – ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 02178, *2–3;  Asprou v. Hellenic Orthodox Community of Astoria, 185 A.D.3d 641, 643, 127 N.Y.S.3d 584).  Furthermore, the plaintiff failed to submit evidence indicating that the NCAA concealed the risk of concussion or that the NCAA's failure to alter its rules was reckless (see Katleski v. Cazenovia Golf Club, Inc., ––– N.Y.3d at –––– – ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2025 N.Y. Slip Op. 02178, *2–3;  Morgan v. State of New York, 90 N.Y.2d 471, 486, 662 N.Y.S.2d 421, 685 N.E.2d 202).  The NCAA was not obligated to exercise reasonable care to guard against reasonably foreseeable injuries if the plaintiff assumed the risk of those injuries (see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 826 N.Y.S.2d 598, 860 N.E.2d 60;  Roberts v. Boys & Girls Republic, Inc., 51 A.D.3d 246, 250–251, 850 N.Y.S.2d 38, affd 10 N.Y.3d 889, 861 N.Y.S.2d 603, 891 N.E.2d 719).

Also contrary to the plaintiff's contention, she did not raise a triable issue of fact as to the application of the inherent compulsion doctrine, which “provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior” (Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 541 N.E.2d 29;  see Hanson v. Sewanhaka Cent. High Sch. Dist., 155 A.D.3d 702, 704, 64 N.Y.S.3d 303).  Here, the plaintiff testified at her deposition only that she was required to play women's lacrosse or risk losing her athletic scholarship.  Consequently, the inherent compulsion doctrine is inapplicable.

LASALLE, P.J., FORD, VOUTSINAS and MCCORMACK, JJ., concur.