MAIDA v. ST BONAVENTURE UNIVERSITY (2019)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained while participating in a game of ultimate frisbee with other members of the men's swim team at the defendant, St. Bonaventure University (hereinafter the University).  While playing ultimate frisbee in a gymnasium as part of an organized swim team practice, the plaintiff jumped for the frisbee and collided with a crossbeam that was protruding from the wall of the gymnasium behind the “end zone.”  In his complaint, the plaintiff alleged that the University's negligence in allowing the gymnasium to remain in an unsafe and dangerous condition caused his injuries.  In its answer, the University alleged that the plaintiff's action was barred by the doctrine of primary assumption of risk.  In his bill of particulars, the plaintiff alleged that the University was negligent in failing to maintain the gymnasium in a safe and proper manner, failing to correct the hazardous exposed crossbeam, failing to warn the plaintiff of the hazardous condition, failing to place padding on the crossbeam, failing to adequately supervise the plaintiff, and failing to properly train staff to supervise the plaintiff.

The University moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of primary assumption of risk.  In opposition, the plaintiff argued that the University failed to establish that he was aware of the presence of the crossbeam and that there was a triable issue of fact as to whether the University's failure to install protective padding on the crossbeam unreasonably increased the risk of injury.  The Supreme Court granted the University's motion, and the plaintiff appeals.

On appeal, the plaintiff contends that the doctrine of primary assumption of risk does not apply because he was compelled to participate in the ultimate frisbee game by his coach, and he did not have the opportunity to assess the risks of playing.  However, these contentions, which, in effect, invoke the inherent compulsion doctrine, are raised for the first time on appeal and do not involve a pure question of law that appears on the face of the record and could not have been avoided if brought to the attention of the Supreme Court (see Matter of Sagres 9, LLC v. State of New York, 164 A.D.3d 903, 905, 83 N.Y.S.3d 185;  Colonial Sur. Co. v. Advanced Conservation Sys., Inc., 164 A.D.3d 465, 465–466, 77 N.Y.S.3d 873;  Tsiboukis v. Estate of Nicolopoulos, 161 A.D.3d 1212, 1212, 74 N.Y.S.3d 512).  Therefore, these contentions are not properly before this Court.

RIVERA, J.P., COHEN, LASALLE and CONNOLLY, JJ., concur.