Rooney v. Battenkill River Sports & Campground Holding Co.

204 A.D.3d 1293

167 N.Y.S.3d 222

Jessica ROONEY, Appellant—Respondent,

v.BATTENKILL RIVER SPORTS & CAMPGROUND HOLDING COMPANY, LLC, Respondent—Appellant.

533765

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

Calendar Date: February 10, 2022

Decided and Entered: April 21, 2022

Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellant-respondent.

Mark D. Goris, Cazenovia, for respondent-appellant.

Before: Egan Jr., J.P., Clark, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Cross appeals from an order of the Supreme Court (McGrath, J.), entered July 1, 2021 in Rensselaer County, which granted defendant's motion for summary judgment dismissing the complaint.

In July 2018, plaintiff sustained injuries when she slipped on a rock located on an access path while attempting to access the Battenkill River to go water tubing. Plaintiff subsequently commenced this negligence action against defendant, the company that rented her the tube and shuttled her by van to the river's access point. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint on the basis that defendant did not owe or breach any duty to plaintiff and that plaintiff's claim was barred by the doctrine of primary assumption of risk. Plaintiff opposed the motion arguing, among other things, that defendant was a common carrier and, as such, it owed a duty of care to maintain the access path. Supreme Court found that defendant operated as a common carrier, and that questions of fact existed as to whether the embankment's access path was primarily used for defendant's business and whether defendant assumed a duty of care. Nevertheless, Supreme Court granted defendant's motion and dismissed the complaint, finding that the doctrine of primary assumption of risk applied to bar plaintiff's claims. Plaintiff appeals and defendant cross appeals from those portions of the order that found defendant to be a common carrier and that questions of fact exist as to whether defendant owed plaintiff a duty of care.¹

The gravamen of plaintiff's contention is that the doctrine of primary assumption of risk is inapplicable here because, although she had traversed the at-issue access path on a prior occasion, such activity is not an inherent risk associated with water tubing. "Under the assumption of risk doctrine, a person who elects to engage in a sport or recreational activity 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" ( Schorpp v. Oak Mtn., LLC, 143 A.D.3d 1136, 1137, 39 N.Y.S.3d 296 [2016] [internal quotation marks and citations omitted]; see Morgan v. State of New York, 90 N.Y.2d 471, 484–485, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ; Thompson v. Windham Mtn. Partners, LLC, 161 A.D.3d 1366, 1366, 75 N.Y.S.3d 701 [2018] ; Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d 957, 958, 862 N.Y.S.2d 626 [2008] ). "The duty owed under these circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty" ( Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d at 958, 862 N.Y.S.2d 626 [internal quotation marks and citations omitted]).

In support of its motion, defendant submitted photographs² of the access path used by plaintiff and the particular rock that plaintiff identified as the one on which she slipped. Defendant also relied on the depositions of plaintiff and Suzanne Piekarz, the daughter of defendant's owner. Plaintiff's testimony confirmed that she had previously used the same access path on a prior water tubing excursion. Piekarz, who has worked at the business since she was a child, testified that the access path consisted of dry dirt and was not particularly rocky, and that the business did not own or maintain the river's embankment access path. Her testimony also revealed that customers were warned by posted and written materials to walk and not run to the river, and that they assumed the risk for all river water activities, including one sign, which read: "YOU ASSUME RISK OF INJURY AND/OR DEATH WHEN PARTICIPATING IN RIVER ACTIVITIES." Given this evidence, we find that defendant established its prima facie entitlement to judgment as a matter of law that plaintiff, who had prior experience water tubing and who had on a prior occasion used the same access path, assumed the inherent risk of her injuries. The risk of falling on uneven and rocky terrain while traversing the river's embankment to access the river is a commonly appreciated and an obvious risk inherent in and arising out of the nature of the sport of river tubing (see Sara W. v. Rocking Horse Ranch Corp., 169 A.D.3d 1342, 1343–1344, 95 N.Y.S.3d 380 [2019] ; Martin v. State of New York, 64 A.D.3d 62, 64, 878 N.Y.S.2d 823 [2009], lv denied 13 N.Y.3d 706, 2009 WL 2959683 [2009] ; Youmans v. Maple Ski Ridge, Inc., 53 A.D.3d at 959, 862 N.Y.S.2d 626 ).

Thus, the burden shifted to plaintiff to raise a triable issue of fact as to whether defendant concealed or unreasonably enhanced the danger, engaged in reckless or intentional conduct or created conditions that were unique and not inherent in river water sports activities (see Morgan v. State of New York, 90 N.Y.2d at 487, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). Plaintiff testified at her deposition that she previously rented a tube from defendant on two prior occasions and that she was taken by shuttle van to an access point, including on one occasion to the same access point where the accident occurred. Plaintiff recalled receiving documentation to fill out, viewing some warning signs at or near the rental office and receiving some general instructions during the shuttle van...