| Morales v Beacon City School Dist. |
| 2007 NY Slip Op 07671 [44 AD3d 724] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Scott Morales et al., Respondents, v Beacon City SchoolDistrict, Appellant. |
—[*1] Vergilis, Stenger, Roberts & Partners, LLP, Wappingers Falls, N.Y. (Anthony DeFazio andAngel Falcon of counsel), for respondents.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Dutchess County (Brands, J.), dated October 3, 2006, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
Scott Morales (hereinafter the plaintiff), a high school student and novice hurdler, wasinjured when he fell over a hurdle during a track practice conducted on an asphalt parking lot.According to the plaintiff, although he had never run hurdles before, he was directed by his coachto run varsity height hurdles, and was not given any prior instruction in the correct technique.Further, the plaintiff claimed that the hurdle over which he fell was not set up properly in that thehorizontal bar was uneven. The defendant moved for summary judgment on the ground, interalia, that the plaintiff assumed the risk of injury. The court denied the motion, finding that triableissues of fact existed as to whether the defendant unreasonably increased the risk of injurybecause it negligently supervised and trained the plaintiff and conducted the practice on anasphalt surface. We affirm.
"[B]y engaging in a sport or recreational activity, a participant consents to those [*2]commonly appreciated risks which are inherent in and arise out ofthe nature of the sport generally and flow from such participation" (Morgan v State of NewYork, 90 NY2d 471, 484 [1997]). However, "[a]ssumption of risk in competitive athletics isnot an absolute defense but a measure of the defendant's duty of care" (Benitez v New YorkCity Bd. of Educ., 73 NY2d 650, 657 [1989] [internal quotation marks omitted]; seeBaker v Briarcliff School Dist., 205 AD2d 652, 654 [1994]). Thus, "[s]tudents whovoluntarily participate in extracurricular sports assume the risks to which their roles expose them,but not risks which have been unreasonably increased" (Baker v Briarcliff SchoolDistrict, 205 AD2d at 655 [internal quotation marks omitted]). "Awareness of the riskassumed is to be assessed against the background of the skill and experience of the particularplaintiff" (Benitez v New York City Bd. of Educ., 73 NY2d at 657 [internal quotationmarks omitted]).
The defendant made a prima facie showing of its entitlement to summary judgment byestablishing that the plaintiff engaged in the sport of track and field, including running hurdles,and was aware of the possibility of falling and injuring himself while participating in this activity(see Muniz v Warwick School Dist., 293 AD2d 724 [2002]).
However, the plaintiff raised a triable issue of fact as to whether the coach failed to properlytrain and supervise the plaintiff, and whether this failure unreasonably increased the plaintiff'srisk of injury (see Muniz v Warwick School Dist., 293 AD2d at 724; Stryker vJericho Union Free School Dist., 244 AD2d 330, 330-331 [1997]; Cody v MassapequaUnion Free School Dist. No. 23, 227 AD2d 368, 368-369 [1996]; Baker v BriarcliffSchool Dist., 205 AD2d at 654). Schmidt, J.P., Santucci, Florio and Dillon, JJ., concur.