| Ballou v Ravena-Coeymans-Selkirk School Dist. |
| 2010 NY Slip Op 03027 [72 AD3d 1323] |
| April 15, 2010 |
| Appellate Division, Third Department |
| Jeanette Ballou, Individually and as Parent and Guardian ofGabriella Ballou, an Infant, Respondent, v Ravena-Coeymans-Selkirk School District,Appellant. |
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Stein, J. Appeal from an order of the Supreme Court (Devine, J.), entered April 6, 2009 inAlbany County, which denied defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff, the mother of Gabriella Ballou (born in 1990), commenced this negligence actionagainst defendant asserting that defendant was liable for injuries that Ballou sustained duringcheerleading tryouts and, derivatively, for damages sustained by plaintiff. After substantialdiscovery, defendant moved for summary judgment dismissing the complaint. Supreme Courtdenied the motion, prompting this appeal.
We affirm. Ballou was in ninth grade when, in the course of trying out for the varsitybasketball cheerleading team, she was injured while attempting to perform a stunt known asa[*2]"prep cradle twist."[FN*]She was an experienced cheerleader, having been a member of the junior varsity football andbasketball cheerleading teams during eighth grade and a member of the varsity footballcheerleading team in ninth grade. Ballou had successfully performed the prep cradle twistapproximately 10 to 20 times in the past. On the day of the accident, there were 30 to 40 studentsand two coaches in defendant's elementary school gymnasium. The students were instructed toseparate themselves into groups of either cheers, motions or stunts. Once divided, the studentsthemselves determined what they were going to do. Ballou and four other girls comprised onestunt group and were practicing at the back of the gymnasium, allegedly within four feet of theother stunt group that had formed. In addition, cheers, jumps and motions were taking place inthe gymnasium at the same time. According to Ballou, the two coaches were seated at the frontof the gymnasium with a former student cheerleader.
Defendant argues that Ballou's assumption of the risk of injury in connection with hercheerleading activities is a complete defense to this action. We disagree. While it is true that,"[b]y voluntarily participating in an interscholastic sport, [Ballou] is deemed to have assumed'those commonly appreciated risks which are inherent in and arise out of the nature of the sportgenerally and flow from such participation[,]' [h]er assumption of those risks is not an absolutedefense but a measure of defendant's duty of care" (Kane v North Colonie Cent. SchoolDist., 273 AD2d 526, 527 [2000] [citation omitted], quoting Morgan v State of NewYork, 90 NY2d 471, 484 [1997]; see Turcotte v Fell, 68 NY2d 432, 439 [1986]).Schools are required to exercise reasonable care to protect student athletes from unassumed,concealed or unreasonable increased risks (see Benitez v New York City Bd. of Educ.,73 NY2d 650, 658 [1989]; Kane v North Colonie Cent. School Dist., 273 AD2d at 527;Parisi v Harpursville Cent. School Dist., 160 AD2d 1079, 1080 [1990]; compareHarris v Cherry Val.-Springfield School Dist., 305 AD2d 964, 965 [2003]; La Mountainv South Colonie Cent. School Dist., 170 AD2d 914, 914-915 [1991]).
Here, defendant met its threshold burden of establishing its entitlement to judgment as amatter of law by offering proof of Ballou's experience as a cheerleader, together with thetestimony of varsity coach Melissa Hummel—regarding, among other things, theappropriate safety precautions and level of supervision of Ballou's activities and the precautionsand supervision provided at the time of the accident—thereby shifting the burden toplaintiff to establish the existence of triable issues of fact (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Plaintiff's submissions in opposition to defendant's motionincluded, among other things, Ballou's sworn testimony and the affidavit of Christine Froelich, acertified cheerleading coach. Froelich opined that there was inadequate supervision of Ballou'sperformance of the stunt and the lack of appropriate supervision was a proximate cause of the[*3]accident. Specifically, aside from her contention thatperformance of a prep cradle twist was in contravention of the applicable cheerleadingguidelines, Froelich averred that the atmosphere in the gymnasium was dangerous relative to theperformance of stunts because of the visual and auditory distractions created by all of theactivities occurring simultaneously. In addition, she contended that the coaches should not haveattempted to monitor two stunt groups at the same time and that Hummel should not havepermitted the cheerleaders to form groups without any consideration of their experience workingtogether. She further opined that Hummel should have required the use of "spotters" in additionto the cheerleaders involved in the stunt and should have ensured that the group was properlypositioned on the mat. In Froelich's opinion, Ballou would not have been injured but for thesedeficiencies.
Viewing the totality of the evidence in the light most favorable to plaintiff (see Negri vStop & Shop, 65 NY2d 625, 626 [1985]; Lynch v Liberty Mut. Fire Ins. Co., 58AD3d 939, 942 [2009]; Goff v Clarke, 302 AD2d 725, 727 [2003]) and accordingplaintiff the benefit of every reasonable inference (see Gadani v Dormitory Auth. of State of N.Y., 43 AD3d 1218,1219 [2007]; Tenkate v Tops Mkts.,LLC, 38 AD3d 987, 989 [2007]), we find that plaintiff raised a genuine issue of fact "asto whether defendant's supervision was inadequate and resulted in the failure to exercisereasonable care to protect [Ballou] from an unreasonably increased risk" (Kane v NorthColonie Cent. School Dist., 273 AD2d at 528; see generally Royal v City ofSyracuse, 309 AD2d 1284, 1285 [2003]; Sheehan v Hicksville Union Free SchoolDist., 229 AD2d 1026 [1996]; Cody v Massapequa Union Free School Dist. No. 23,227 AD2d 368, 369 [1996]; Parisi v Harpursville Cent. School Dist., 160 AD2d at 1080).Therefore, we decline to disturb Supreme Court's determination.
Defendant's remaining contentions have been reviewed and are unavailing.
Cardona, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: The stunt was also known as a"prep twist," "prep twist cradle" and "prep twist from cradle." It involved Ballou and four othercheerleaders. The stunt required that Ballou be lifted and thrown up in the air by twocheerleaders, drop her left shoulder back, make a 360 degree spin and land in the crossed arms ofthe four cheerleaders. However, Ballou mistakenly dropped her right shoulder and was propelledforward instead of backward, causing her to land partially off the mat that was positionedunderneath the stunt group and to strike her head on the hard gymnasium floor.