NY State Appeals Court Affirms That Assumption of Risk Is Inapplicable in Wrestling Case
A New York state appeals court has affirmed the ruling of a lower court, denying separate motions to dismiss made by two defendant school districts in a personal injury case.
The impetus for the action occurred on 17 March 2009, when plaintiff Anthony C. Philippou, then 13-years-old, was participating as a wrestler in a dual meet as a representative of Lawrence Middle School, in the defendant Lawrence Union Free School District (LUFSD). The meet was held at Baldwin Middle School, in the defendant Baldwin Union Free School District (BUFSD).
Philippou was injured during a match when two mats, which had been taped together, came apart as his hand and arm hit the wood floor, following an attempted take-down by his opponent. He ultimately sued BUFSD and LUFSD to recover damages for personal injuries.
Separately, the defendants moved for summary judgment, arguing that the plaintiff assumed the risk of injury. The trial court denied the motions. The defendants appealed.
The appeals court noted that the defendants were successful in establishing that the plaintiff, an eighth grader who was involved in wrestling, a contact sport, was aware of the possibility of injuries.
“It is well established that a voluntary participant in sporting events has consented, by their participation, to injuries which are apparent or reasonably foreseeable consequences of the participation. (Turcotta v. Fell, 68 NY2d 432). When the risk of a sporting activity is fully comprehended and apparent, the participant has consented to them and the defendant has performed its duty. (Id.) An infant plaintiff, a wrestler, was held to have assumed the risk of a blow to the jaw in a take-down move, (Edelson v. Uniondale UFSD, 219 AD2d 614), and to have assumed the risk of being thrown down to the floor by a teammate during practice when half his body landed on the mat and the other half landed on the hardwood floor surrounding the mat. (Egger v. St. Dominic High School, 238 AD2d 542).”
The appeals court noted that the plaintiff, who had never wrestled before joining his school's team, had participated in eight wrestling matches as of the date of the subject wrestling match.
It then went on to examine the doctrine of primary assumption of risk, which mandates that “a voluntary participant in a sporting 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.’” (Weinberger v Solomon Schechter Sch. of Westchester, 102 AD3d 675, 677, 961 N.Y.S.2d 178, quoting Alqurashi v Party of Four, Inc., 89 AD3d 1047,1047, 934 N.Y.S.2d 214, quoting Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Trupia v Lake George Cent. School Dist., 14 NY3d 392, 395, 927 N.E.2d 547, 901 N.Y.S.2d 127; Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49; Viola v Carmel Cent. School Dist., 95 AD3d 1206, 1207, 945 N.Y.S.2d 155).
“The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon.” (Castro v City of New York, 94 AD3d 1032, 1032, 944 N.Y.S.2d 155; see Viola v Carmel Cent. School Dist., 95 AD3d at 1207).
“If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies.” (Cotty v Town of Southampton, 64 AD3d 251, 254, 880 N.Y.S.2d 656; see Bocelli v County of Nassau, 93 AD3d 747, 748, 940 N.Y.S.2d 660; Palladino v Lindenhurst Union Free School Dist., 84 AD3d 1194, 1195, 924 N.Y.S.2d 474; Rosenbaum v Bayis Ne'Emon, Inc., 32 AD3d 534, 820 N.Y.S.2d 326).
However, “a board of education, its employees, agents and organized athletic councils must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from unassumed, concealed or unreasonably increased risks.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658, 541 N.E.2d 29, 543 N.Y.S.2d 29; see Schmidt v Massapequa High School, 83 AD3d 1039, 1039, 921 N.Y.S.2d 547).
“Here, the defendants failed to establish, prima facie, that the injured plaintiff, by participating in the wrestling match, assumed the risk of being injured in the manner in which he allegedly was injured here. The defendants' moving papers failed to demonstrate, prima facie, that the allegedly dangerous condition caused by the improperly taped or secured mats did not unreasonably increase the risk of injury inherent in the sport of wrestling. (see Blumstein v Half Hollow Hills Cent. School Dist., 96 AD3d 702, 703, 945 N.Y.S.2d 426; Cotty v Town of Southampton, 64 AD3d at 254; Laboy v Wallkill Cent. School Dist., 201 AD2d 780, 781, 607 N.Y.S.2d 746).
“Since the defendants did not establish their prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs' opposition papers.” (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316).
Anthony C. Philippou, etc., et al. v Baldwin Union Free School District, et al.; S.Ct.N.Y., App. Div., 2d Dept.; 105 A.D.3d 928; 2013 N.Y. App. Div. LEXIS 2494 2013 NY Slip Op 2556; 4/17/13
Attorneys of Record: (for appellant Baldwin Union Free School District) Ahmuty, Demers & McManus, Albertson, N.Y. (Glenn A. Kaminska and Nicholas M. Cardascia of counsel). (for appellant Lawrence Public Schools) Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel),. (for respondents) Nathaniel M. Swergold, Cedarhurst, N.Y.This article originally appeared in Sports Litigation Alert. World Sports Law Report editor Andy Brown writes a European round-up for Sports Litigation Alert. A search through World Sports Law Report’s archives, which contain over ten years of archives sports law information, found almost 30 articles relating to liability. To access the archive, sign up for a free trial here.