| Larson v Cuba Rushford Cent. School Dist. |
| 2010 NY Slip Op 08501 [78 AD3d 1687] |
| November 19, 2010 |
| Appellate Division, Fourth Department |
| Margaret Larson, as Parent and Natural Guardian of Katie L. DeSautels,an Infant, Respondent, v Cuba Rushford Central School District et al.,Appellants. |
—[*1] Jeffrey Freedman Attorneys at Law, Buffalo (Edward J. Murphy, III, of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Allegany County (James E. Euken, A.J.), enteredJuly 15, 2009 in a personal injury action. The order denied the motion of defendants for summaryjudgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by herdaughter when she fell while performing a stunt during cheerleading practice. Following discovery,defendants moved for summary judgment dismissing the complaint based on the doctrine of primaryassumption of the risk. We conclude that Supreme Court properly denied the motion. As defendantscorrectly contend, it is well established that, "by engaging in a sport or recreational activity, a participantconsents to those commonly appreciated risks [that] are inherent in and arise out of the nature of thesport generally and flow from such participation" (Morgan v State of New York, 90 NY2d471, 484 [1997]). In addition, cheerleading is the type of athletic activity to which the doctrine ofprimary assumption of the risk applies (seee.g. Williams v Clinton Cent. School Dist., 59 AD3d 938 [2009]; Sheehan v HicksvilleUnion Free School Dist., 229 AD2d 1026 [1996]). That doctrine does not, however, shielddefendants from liability for "exposing plaintiff['s daughter] to unreasonably increased risks of injury"(Sheehan, 229 AD2d 1026).
Defendants met their initial burden of establishing that the action is barred based on assumption ofthe risk by plaintiff's daughter, inasmuch as they submitted evidence demonstrating that she voluntarilyparticipated in the stunt and that the risk of falling during the stunt was obvious. Nevertheless, plaintiffraised a triable issue of fact sufficient to defeat the motion (see Ballou v Ravena-Coeymans-Selkirk School Dist., 72 AD3d 1323,1325-1326 [2010]; Sheehan, 229 AD2d 1026). Plaintiff presented evidence with respect tothe inexperience of defendant Kari Feuchter as a cheerleading coach, as well as her alleged failure toutilize proper coaching techniques and to monitor the activities of the team members during practice. Inour [*2]view, that evidence was sufficient to raise a triable issue of factwhether Feuchter "failed to provide proper supervision of the cheerleading activities, thereby exposingplaintiff['s daughter] to unreasonably increased risks of injury" (Sheehan, 229 AD2d 1026; see Muller v Spencerport Cent. SchoolDist., 55 AD3d 1388 [2008]; Garman v East Rochester School Dist., 46 AD3d 1354 [2007]). It willthus be for the trier of fact to determine whether the doctrine of primary assumption of risk barsplaintiff's claims. Present—Smith, J.P., Fahey, Lindley, Sconiers and Gorski, JJ.