| Lomedico v Cassillo |
| 2008 NY Slip Op 09216 [56 AD3d 1271] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| Mario Lomedico et al., Individually and as Parents and NaturalGuardians of Marc Lomedico, an Infant, Appellants, v Joseph Cassillo et al., Defendants, andWal-Mart Stores, Inc., et al., Respondents. (Appeal No. 1.) |
—[*1] O'Connor, O'Connor, Bresee & First, P.C., Albany (Michael P. Cavanagh of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.),entered August 16, 2008 in a personal injury action. The order granted the motion of defendantsWal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust for summary judgmentdismissing the complaint against them.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained bytheir son during a fight with other high school students in a parking lot. Defendant HerkimerCounty Industrial Development Agency (IDA) owned the property on which the parking lot waslocated, and IDA leased the property to defendant Widewaters Herkimer Company, LLC(Widewaters). Widewaters in turn leased the parking lot and a store on the property to defendantWal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust (collectively, Wal-Martdefendants).
Addressing first the order in appeal No. 2, we conclude that Supreme Court properly grantedthe motion of IDA and Widewaters seeking summary judgment dismissing the complaint againstthem. Those defendants met their initial burden by establishing that they were out-of-possessionlandlords who had relinquished control of the parking lot to the Wal-Mart defendants and did notcreate a dangerous condition, and they thus established that they owed no duty to plaintiffs' son(see Ferro v Burton, 45 AD3d 1454 [2007]; Schwegler v City of Niagara Falls,21 AD3d 1268 [2005]). Plaintiffs failed to raise a triable issue of fact in opposition (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).[*2]
With respect to the order in appeal No. 1, we concludethat the court also properly granted the motion of the Wal-Mart defendants seeking summaryjudgment dismissing the complaint against them. "[A] possessor of land[, including] aleaseholder, is not an insurer of [a] visitor's safety. Thus, even where there is an extensive historyof criminal conduct on the premises, the possessor cannot be held to a duty to take protectivemeasures unless it is shown that [the possessor] either knows or has reason to know from pastexperience 'that there is a likelihood of conduct on the part of third persons . . .which is likely to endanger the safety of the visitor' " (Nallan v Helmsley-Spear, Inc., 50NY2d 507, 519 [1980]).
Here, the Wal-Mart defendants "established as a matter of law that [they were] unaware ofany facts that would put [them] on notice that an assault would occur in [their] parking lot"(Arcuri v Sequin, 244 AD2d 972 [1997]). Those defendants established that there was nohistory of prior assaults or other violent crimes in the parking lot, nor was there any history ofstudents gathering to fight. Thus, the Wal-Mart defendants established that "the criminal act [inquestion] . . . was not reasonably foreseeable and thus [they were] not under a dutyto perceive and guard against it" (Golombek v Marine Midland Bank, 193 AD2d 1113,1114 [1993]).
In any event, even assuming, arguendo, that the Wal-Mart defendants owed a duty toplaintiffs' son, we conclude that those defendants established as a matter of law that the action isbarred based on the primary assumption of risk by plaintiffs' son. "The doctrine of primaryassumption of the risk generally constitutes a complete defense to an action to recover damagesfor personal injuries . . . and applies to[, inter alia,] . . . the voluntaryparticipation in nonsporting activities, both proper and improper, which involve an elevated riskof danger" (Farnham v Meder, 45 AD3d 1315, 1316 [2007]; see Weller v Colleges ofthe Senecas, 217 AD2d 280, 283-284 [1995]). "As a general rule, participants properly maybe held to have consented, by their participation, to those injury-causing events which are known,apparent or reasonably foreseeable consequences of the participation" (Turcotte v Fell, 68NY2d 432, 439 [1986]; see Lamey v Foley, 188 AD2d 157, 164 [1993]). However, "it isnot necessary to demonstrate that the [individual] foresaw the exact manner in which his [or her]injury occurred" (Lamey, 188 AD2d at 164). Here, the Wal-Mart defendants establishedthat plaintiffs' son, a high school student, was a knowing and voluntary participant in the fight(see Turcotte, 68 NY2d at 437; Lamey, 188 AD2d at 164), and that he assumedthe risks that were "known, apparent or reasonably foreseeable consequences of the participation"(Turcotte, 68 NY2d at 439; see Lamey, 188 AD2d at 164). Those risksnecessarily included physical injury to the participants in the fight, including plaintiffs' son(see Ruggerio v Board of Educ. of City of Jamestown, 31 AD2d 884 [1969], affd26 NY2d 849 [1970]). Present—Scudder, P.J., Martoche, Lunn, Peradotto and Green,JJ.