If you can see that you can get hurt and you admit that you saw and knew that you assume the risk of your injuries.

In this obstacle course race the plaintiff could see if she fell off the apparatus she would land on a road and could get hurt. She also admitted she undertook the climb of the apparatus voluntarily, so she lost her lawsuit.

Citation: Ramos, et al., Michael Epstein Sports Productions, Inc., et al, 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

State: New York, Supreme Court of New York, Second Department

Plaintiff: Monica Ramos, et al.

Defendant: Michael Epstein Sports Productions, Inc., et al.

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2019

Facts

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.

The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up.

Analysis: making sense of the law based on these facts.

The court started by explaining the Doctrine of Assumption of the Risk as applied in New York.

The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'”. “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty”. Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine. “It is not necessary . . . 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’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff”

Then the court reviewed the plaintiff’s deposition where she stated.

She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway.

The plaintiff argued the Doctrine of Assumption of the Risk only applied to permanent designated venues. The court quickly threw out this argument. The plaintiff also did not submit any evidence showing the defendant had concealed or increased the risk of the activity.

The plaintiff lost.

So Now What?

So why write about this case? Because it shows how you can win if you just don’t try and hide the risks of the activity. In most states Assumption of the Risk is a defense to a negligence claim second to that of a release. In 7-8 states it is the only difference to an outdoor recreation negligence claim. Meaning Assumption of the risk is a defense that is good in all 50 states.

In the majority of states, it is the only defense to a claim by a minor.

Consequently, you should always create a situation where your customers can see the risk in advance, understand the danger presented by the risk and as in this case, opt out of the risk if they want.

If you do that, you create a simply effective defense that results in a simply easy to defend case and a short-written decision from the court in your favor.

What do you think? Leave a comment.

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Ramos, et al., Michael Epstein Sports Productions, Inc., et al., 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

Ramos, et al., Michael Epstein Sports Productions, Inc., et al., 2019 N.Y. App. Div. LEXIS 4964, 2019 NY Slip Op 04973, 2019 WL 2518539, 2019 N.Y. App. Div. LEXIS 4964

Monica Ramos, et al., appellants,

v.

Michael Epstein Sports Productions, Inc., et al., respondents.

Index No. 65423/15

No. 2018-02525

Supreme Court of New York, Second Department

June 19, 2019

Argued – March 15, 2019

D59831 G/htr

Michael Fuller Sirignano, Cross River, NY, for appellants.

Kowalski & DeVito (McGaw, Alventosa & Zajac, Jericho, NY [Andrew Zajac], of counsel), for respondents.

WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL FRANCESCA E. CONNOLLY ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Mary H. Smith, J.), dated November 29, 2017. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries allegedly sustained by the plaintiff Monica Ramos (hereinafter the injured plaintiff) while participating in an obstacle course race held at a public park in the Bronx. The event was organized and operated by the defendant Michael Epstein Sports Productions, Inc., and sponsored by the defendant Wolverine World Wide, Inc. The injured plaintiff allegedly fell when she was attempting to navigate the final portion of a rope obstacle called the “Monster Climb,” sustaining serious injuries.

The defendants moved for summary judgment dismissing the complaint on the basis that the action was barred by the doctrine of assumption of risk. In opposition, the plaintiffs argued that the assumption of risk doctrine cannot apply unless the sport or recreational activity takes place at a permanent, designated facility. They also argued that there were triable issues of fact as to whether the defendants unreasonably increased the risk of the Monster Climb obstacle by erecting it on a roadway without protective mats underneath it, by allowing an unlimited number of participants on the obstacle’s cargo nets at the same time, and by having staffers shout at the injured plaintiff to turn her body and hurry up. The Supreme Court granted the defendants’ motion, and the plaintiffs appeal.

The “assumption of risk doctrine applies where a consenting participant in sporting and amusement activities ‘is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks'” (Bukowski v Clarkson Univ., 19 N.Y.3d 353, 356, quoting Morgan v State of New York, 90 N.Y.2d 471, 484; see Altagracia v Harrison Cent. Sch. Dist., 136 A.D.3d 848, 849). “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Bukowski v Clarkson Univ., 19 N.Y.3d at 356; see Falcaro v American Skating Ctrs., LLC, 167 A.D.3d 721, 722; Lee v Brooklyn Boulders, LLC, 156 A.D.3d 689, 690). Risks which are “commonly encountered” or “inherent” in a sport, as well as risks “involving less than optimal conditions,” are risks which participants have accepted and are encompassed by the assumption of risk doctrine (Bukowski v Clarkson Univ., 19 N.Y.3d at 356; see Bryant v Town of Brookhaven, 135 A.D.3d 801, 802). “It is not necessary . . . 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” (Siegel v Albertus Magnus High Sch., 153 A.D.3d 572, 574 [internal quotation marks omitted]; see Ferrari v Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 938; Toro v New York Racing Assn., Inc., 95 A.D.3d 999, 1000). A participant’s awareness of risk is “to be assessed against the background of the skill and experience of the particular plaintiff” (Siegel v Albertus Magnus High Sch., 153 A.D.3d at 574 [internal quotation marks omitted]; see Ferrari v Bob’s Canoe Rental, Inc., 143 A.D.3d at 938; Bryant v Town of Brookhaven, 135 A.D.3d at 802).

Here, the defendants established their prima facie entitlement to judgment as a matter of law through the submission of the injured plaintiff’s deposition testimony. She testified that she saw that there were no mats under the Monster Climb, knew that she could fall and be hurt, and knew that she did not have to attempt the obstacle, but decided to anyway. Contrary to the plaintiffs’ contention, the assumption of risk doctrine is not limited to “[permanent, ] designated venues,” but may also be applied when a plaintiff assumes the risks of “sporting events” or “sponsored athletic and recreative activities” (Custodi v Town of Amherst, 20 N.Y.3d 83, 89).

The plaintiffs failed to raise a triable issue of fact in opposition. They submitted no evidence demonstrating that the injured plaintiff was subjected to “unassumed, concealed or unreasonably increased risks” (Bryant v Town of Brookhaven, 135 A.D.3d at 803 [internal quotation marks omitted]). In addition, the injured plaintiff’s affidavit presents a “feigned issue of fact, designed to avoid the consequences of her earlier deposition testimony” (Burns v Linden St. Realty, LLC, 165 A.D.3d 876, 877; see Odetalla v Rodriguez, 165 A.D.3d 826, 827; Meriweather v Green W. 57th St., LLC, 156 A.D.3d 875, 876), and is insufficient to defeat summary judgment.

Accordingly, we agree with the Supreme Court’s determination to grant the defendants’ motion for summary judgment dismissing the complaint.

The defendants’ alternative argument for affirmance has been rendered academic in light of our determination (see Palmieri v Town of Babylon, 167 A.D.3d 637, 641; Mason-Mahon v Flint, 166 A.D.3d 754, 759; Gentry v Mean, 166 A.D.3d 583, 584).

MASTRO, J.P., LEVENTHAL, CONNOLLY and IANNACCI, JJ., concur