A. G. v. Roosevelt Union Free Sch. Dist.

222 A.D.3d 948

202 N.Y.S.3d 442

A. G., etc., et al., appellants,

v.ROOSEVELT UNION FREE SCHOOL DISTRICT, et al., respondents.

2021–04348

Index No. 614546/19

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

Argued—October 13, 2023

December 27, 2023

Harry I. Katz, P.C., Fresh Meadows, NY (Victoria L. Weinman of counsel), for appellants.

Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Uniondale, NY (Michael T. Reagan and Kathleen D. Foley of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered June 3, 2021. The order, insofar as appealed from, granted the defendants’ motion for summary judgment dismissing the complaint and denied that branch of the plaintiffs’ cross-motion which was for summary judgment on the issue of liability.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendants’ motion for summary judgment dismissing the complaint, and substituting therefor a provision denying the defendants’ motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The infant plaintiff was a student at a middle school operated by the defendant Roosevelt Union Free School District (hereinafter the district) and a participant in the school's extracurricular musical theater production. During rehearsal, which took place at the district's high school, the infant plaintiff was injured when she struck her toe on a metal anchor affixed to the stage, while running to meet her musical cue. The infant plaintiff, by her father, and her father individually, commenced this action alleging that the defendants, the district and the Board of Education of Roosevelt Union Free School District, negligently caused the infant plaintiff's injuries. The defendants moved for summary judgment dismissing the complaint. The plaintiffs cross-moved, inter alia, for summary judgment on the issue of liability. In an order entered June 3, 2021, the Supreme Court, among other things, granted the defendants’ motion and denied that branch of the plaintiffs’ cross-motion. The plaintiffs appeal.

The defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law. Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from participation therein (see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Scally v. J.B., 187 A.D.3d 959, 960, 130 N.Y.S.3d 708 ). "[I]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results. A participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced" ( Grady v. Chenango Val. Cent. Sch. Dist., 40 N.Y.3d 89, 95, 194 N.Y.S.3d 716, 215 N.E.3d 1157 [citation and internal quotation marks omitted]; see Lungen v. Harbors Haverstraw Homeowners Assn., Inc., 206 A.D.3d 714, 715, 170 N.Y.S.3d 159 ). "Awareness of risk is ‘to be assessed against the background of the skill and experience of the particular plaintiff’ " ( Philius v. City of New York, 161 A.D.3d 787, 788, 75 N.Y.S.3d 511, quoting Morgan v. State of New York, 90 N.Y.2d 471, 486, 662 N.Y.S.2d 421, 685 N.E.2d 202 ).

Here, the defendants failed to establish, prima facie, that the doctrine of primary assumption of risk barred the plaintiffs’ recovery. The defendants submitted evidence which revealed a triable issue of fact as to whether the anchor on the stage, as covered by stage curtains, constituted a concealed risk (see Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 ; Scally v. J.B., 187 A.D.3d at 960, 130 N.Y.S.3d 708 ; Lee v. Brooklyn Boulders, LLC, 156 A.D.3d 689, 690, 67 N.Y.S.3d 67 ).

The defendants also failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law regarding the premises liability theory of negligence. "The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for a jury" (...