PANTALONE v. TALCOTT

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Supreme Court, Appellate Division, Third Department, New York.

Maria PANTALONE, Respondent, v. Brittany TALCOTT et al., Appellants, et al., Defendants.

Decided: June 26, 2008

Before:  CARDONA, P.J., PETERS, CARPINELLO, KANE and STEIN, JJ. Goldberg Segalla, L.L.P., Albany (Jonathan M. Bernstein of counsel), for appellants. Abdella Law Offices, Gloversville (Robert Abdella of counsel), for respondent.

Appeal from an order of the Supreme Court (Aulisi, J.), entered October 23, 2007 in Fulton County, which denied a motion by defendants Brittany Talcott and Stanley Kucel for summary judgment dismissing the complaint against them.

 Plaintiff suffered a back injury while riding as a passenger on a snowmobile driven by defendant Brittany Talcott.   Defendant Stanley Kucel owned the snowmobile and permitted Talcott to operate it.1  To recover for her injuries, plaintiff commenced this action.   Talcott and Kucel (hereinafter collectively referred to as defendants) moved for summary judgment dismissing the complaint against them based upon the doctrine of assumption of risk.   Supreme Court denied the motion.   Defendants appeal.

 Supreme Court properly denied defendants' motion.   The doctrine of primary assumption of risk completely bars recovery to a plaintiff who was injured during voluntary participation in a recreational activity (see Connor v. Tee Bar Corp., 302 A.D.2d 729, 730, 755 N.Y.S.2d 489 [2003] ).   Voluntary participants in sports or recreational activities consent “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 [1997];  see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986] ).   Correspondingly, participants do not consent to conduct that is reckless, intentional or so negligent as to create an unreasonably increased risk (see Connor v. Tee Bar Corp., 302 A.D.2d at 730, 755 N.Y.S.2d 489;  Kaufman v. Hunter Mtn. Ski Bowl, 240 A.D.2d 371, 372, 657 N.Y.S.2d 773 [1997];  see also Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964).   Application of the doctrine is generally considered a question of fact for the jury (see Connor v. Tee Bar Corp., 302 A.D.2d at 730, 755 N.Y.S.2d 489).

 Here, plaintiff rode on the back of the snowmobile as Talcott, who was 15 years old and had previously driven this snowmobile less than 10 times, operated the machine at a high rate of speed, possibly 50 miles per hour.   Talcott continued at this speed even when her vision became impaired by sun glaring off the snow and ice.   She acknowledged that she did not see the knoll due to the glare, and she did not slow down or brake when approaching bumps or the knoll which caused the incident (see PRHPL 25.03[1], [2] ).   After hitting the knoll, which plaintiff estimated as three to four feet high, the snowmobile became airborne before crashing to the ground on the other side.   Viewing the evidence in a light most favorable to plaintiff, the nonmoving party, we agree with Supreme Court that questions of fact exist, requiring a jury to determine the application of the doctrine of assumption of risk (see Connor v. Tee Bar Corp., 302 A.D.2d at 730-731, 755 N.Y.S.2d 489;  Morgan v. Ski Roundtop, 290 A.D.2d 618, 620, 736 N.Y.S.2d 135 [2002];  Rios v. Town of Colonie, 256 A.D.2d 900, 901, 682 N.Y.S.2d 272 [1998] ).

ORDERED that the order is affirmed, with costs.

FOOTNOTES

1.   Kucel is vicariously liable for any of Talcott's negligent conduct (see PRHPL 25.23[1] ).

KANE, J.

CARDONA, P.J., PETERS, CARPINELLO and STEIN, JJ., concur.

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