Andriienko v. Compass Grp. United States, Inc.

174 A.D.3d 558

105 N.Y.S.3d 114

Liubov ANDRIIENKO, Appellant,

v. COMPASS GROUP USA, INC., et al., Respondents.

2017–04027

Index No. 501237/13

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

Argued - March 12, 2019

July 10, 2019

William Pager, Brooklyn, NY, for appellant.

Gordon & Silber, P.C., New York, N.Y. (Jon D. Lichtenstein of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The plaintiff, an experienced ice skater, commenced this action to recover damages for injuries she alleges she sustained when she was skating at an ice skating rink owned and operated by the defendants. The plaintiff alleged that she was pushed down on the ice by an unruly skater who had previously caused other skaters to fall. After discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion finding, inter alia, that the plaintiff assumed the risks inherent in skating at an ice skating rink. The plaintiff appeals, and we reverse.

Voluntary participants in a sport or recreational activity "may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" ( Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ; see Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). Although collisions between skaters are a common occurrence and are an inherent risk in the sport of ice skating (see Bleyer v. Recreational Mgt. Serv. Corp., 289 A.D.2d 519, 520, 735 N.Y.S.2d 616 ; Vega v. County of Westchester, 282 A.D.2d 738, 724 N.Y.S.2d 72 ), participants "do not consent to acts which are reckless or intentional" ( Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 ), or to any "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 ; see Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). "Thus, where reckless behavior that is over and above the usual dangers inherent in the activity of skating is claimed to have caused the injury, the issue of whether the proprietor was negligent in supervising the skaters turns on whether the proprietor had sufficient notice of the allegedly reckless conduct so as to permit it to prevent the injury through the exercise of adequate supervision" ( Fader v. Town of Oyster Bay, 113 A.D.3d 725, 726, 978 N.Y.S.2d 877 ; see Laurent v. Town of Oyster Bay, 163 A.D.3d 544, 545, 79 N.Y.S.3d 638 ). "The duration and nature of the allegedly reckless conduct are factors that bear on this issue" ( Fader v. Town of Oyster Bay, 113 A.D.3d at 726, 978 N.Y.S.2d 877 ; see Winkler v. County of Nassau, 56 A.D.3d 550, 550–551, 871 N.Y.S.2d 145 ).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. The defendants' submission failed to show that the accident was precipitated by a sudden collision common to skating which could not have been anticipated or prevented. The defendants submitted the deposition testimony of the plaintiff who testified, among other things, that, over the course of more than 20 minutes, two other skaters had been pushing each other, spinning, and skating against the flow of other skaters, which caused at least three other skaters to fall before the plaintiff was injured. Thus, the defendants failed to establish, prima facie, that the action was barred by the doctrine of primary assumption of risk (see Kats–Kagan v. City of New York, 117 A.D.3d 686, 687, 985 N.Y.S.2d 626 ; ...