MUSANTE v. OCEANSIDE UNION FREE SCHOOL DISTRICT (2009)

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated July 28, 2008, as denied its motion for summary judgment dismissing the complaint, and the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, and the defendant's motion for summary judgment dismissing the complaint is granted;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The injured plaintiff, an experienced high school wrestler, allegedly was injured during wrestling practice when he stepped on the edge of a wrestling mat while participating in an activity he referred to as “wind sprints” and was caused to collide with a nearby wall.   The plaintiffs alleged that the defendant was negligent in directing the injured plaintiff to use the wall as a finishing point for the drill.   The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint, and denied the plaintiffs' cross motion for summary judgment on the issue of liability.

 “[B]y 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” (Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   Even where the risk of the activity is assumed, “a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks” (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).

 The defendant made a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of the risk by demonstrating that the risk of colliding with the wall was inherent in the activity, and the condition of the wall was open and obvious (see Ribaudo v. La Salle Inst., 45 A.D.3d 556, 557, 846 N.Y.S.2d 209;  Marucheau v. Suffolk County Community Coll., 23 A.D.3d 445, 808 N.Y.S.2d 119;  Kazlow v. City of New York, 253 A.D.2d 411, 676 N.Y.S.2d 229), as was any height differential between the floor and the wrestling mat (see Sammut v. City of New York, 37 A.D.3d 811, 812, 830 N.Y.S.2d 779;  Morlock v. Town of N. Hempstead, 12 A.D.3d 652, 653, 785 N.Y.S.2d 123;  Galski v. State of New York, 289 A.D.2d 195, 195-196, 733 N.Y.S.2d 695;  Peters v. City of New York, 269 A.D.2d 581, 581-582, 703 N.Y.S.2d 923).   Furthermore, the injured plaintiff's voluntary participation in the activity does not implicate the doctrine of inherent compulsion (see Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 658, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Vecchione v. Middle Country Cent. School Dist., 300 A.D.2d 471, 472, 752 N.Y.S.2d 82).

The affidavit of the plaintiffs' expert, who opined that the defendant was negligent for failing to conduct the drill in a more appropriate, larger, and safer venue, was insufficient to raise a triable issue of fact, as such failures “did not increase the inherent and obvious risks of the exercise” (Ross v. New York Quarterly Mtg. of Religious Socy. of Friends, 32 A.D.3d 251, 252-253, 819 N.Y.S.2d 749;  see DiGiose v. Bellmore-Merrick Cent. High School Dist., 50 A.D.3d 623, 855 N.Y.S.2d 199;  cf. Cody v. Massapequa Union Free School Dist. No. 23, 227 A.D.2d 368, 642 N.Y.S.2d 329).   Furthermore, the expert failed to identify any specific industry standard upon which he relied in concluding that the defendant negligently conducted the exercise (see Lombardo v. Cedar Brook Golf & Tennis Club, Inc., 39 A.D.3d 818, 819, 834 N.Y.S.2d 326;  Barbato v. Hollow Hills Country Club, 14 A.D.3d 522, 523, 789 N.Y.S.2d 199;  Kazlow v. City of New York, 253 A.D.2d at 411, 676 N.Y.S.2d 229;  cf. Greenburg v. Peekskill City School Dist., 255 A.D.2d 487, 680 N.Y.S.2d 622).

Accordingly, the defendant's motion for summary judgment dismissing the complaint should have been granted and, concomitantly, the plaintiffs' motion for summary judgment on the issue of liability was properly denied.