| Ashbourne v City of New York |
| 2011 NY Slip Op 01687 [82 AD3d 461] |
| March 8, 2011 |
| Appellate Division, First Department |
| Cecilia Ashbourne, Appellant, v City of New York et al.,Defendants, and New York City Housing Authority, Respondent. |
—[*1] Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered September 15, 2009,that granted defendant New York City Housing Authority's (NYCHA) motion for summaryjudgment, unanimously reversed, on the law, without costs, and the motion denied.
This case requires us to analyze the extent to which the assumption of risk doctrine remainsviable after Trupia v Lake George Cent.School Dist. (14 NY3d 392, 395-396 [2010]). Plaintiff, an adult experienced in theactivity, was roller-blading home on the sidewalk. She maneuvered to avoid a group ofpedestrians in front of her. As she passed them, she admittedly was looking at the pedestrians andnot at the ground. Her wheels became "stuck" and she fell. She sustained injuries requiringsurgery. Plaintiff claims that a rise or bump in a part of the sidewalk was the cause of her fall.The location of her fall was adjacent to public housing, so plaintiff sued NYCHA as well as theCity.
The motion court granted defendant NYCHA's motion for summary judgment solely on thebasis of assumption of risk, essentially holding that by engaging in the activity "plaintiff assumedthe risk of falling and being injured while roller-blading." In the interim between the trial court'sdecision dismissing the case and this decision, the Court of Appeals decided Trupia. InTrupia, an infant plaintiff, who was attending a summer program that the defendantsadministered, seriously injured himself while sliding down a banister. The defendant had left theplaintiff, who was under 12, unsupervised. The complaint sought to recover principally on atheory of negligent supervision. The defendants moved to dismiss based on assumption of risk.
In its decision affirming that of the Appellate Division, Third Department, the Court ofAppeals discussed how, in 1975, the Legislature abolished contributory negligence andassumption of risk as absolute defenses and replaced them with a comparative negligenceframework. Under a comparative negligence approach, the amount of damages is diminisheddepending on the percentage that the plaintiff is negligent. The Court of Appeals made clear thatthe assumption of risk doctrine has little place in a comparative negligence framework: "We havenot applied the doctrine outside of this limited context[*2][sporting activities] and it is clear that its application must beclosely circumscribed if it is not seriously to undermine and displace the principles ofcomparative causation that the Legislature has deemed applicable to 'any action torecover damages for personal injury, injury to property, or wrongful death' (CPLR 1411[emphasis added])" (14 NY3d at 395-396 [citation omitted]). Thus, the Court recognized thatblanket application of assumption of risk in every sporting activity was not correct and limitedapplication of the doctrine primarily to protect sponsors of athletic and recreational activitiesfrom liability that arose from these activities (id. at 396). The Court of Appeals affordedthis protection as a policy matter because of the "enormous social value" that athletic andrecreational activities impart, "even while they involve significantly heightened risks" (id.at 395). The Court of Appeals noted that it had "employed the notion that these risks may bevoluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability towhich they would otherwise give rise" (id.). Accordingly, the Court refused to applyassumption of risk to the infant plaintiff because the case was not one where the defendant"solely by reason of having sponsored or otherwise supported some risk-laden but sociallyvaluable voluntary activity has been called to account in damages" (id. at 396).
On December 21, 2010, the Court of Appeals decided Anand v Kapoor (15 NY3d 946 [2010]) and did apply theassumption of risk doctrine to an injury a golfer sustained when a golfing companion hit a golfball into his eye. The Court of Appeals affirmed the Appellate Division, Second Department'sdismissal of the action, stating that "[a] person who chooses to participate in a sport orrecreational activity consents to certain risks that 'are inherent in and arise out of the nature of thesport generally and flow from such participation' " (id. at 947-948 [citation omitted]).
Although plaintiff was roller-blading, an activity one could consider to be recreational andrisky, this is not a case like Anand where plaintiff and defendant were participants in anorganized sporting event. Plaintiff's leisurely roller-blading on a public sidewalk does notconstitute a sponsored sporting event or recreational activity for the purpose of applying theassumption of risk doctrine any more than jogging on the sidewalk would. We simply cannot say,as a matter of law, that by engaging in a form of exercise, such as roller-blading or jogging on apublic sidewalk, a plaintiff consents to the negligent maintenance of that sidewalk (see Cotty v Town of Southampton, 64AD3d 251, 256-257 [2009] [declining to extend assumption of risk to [*3]plaintiff bicyclist who collided with an oncoming vehicle after sheswerved in the road to avoid collision with another cyclist who fell into her path afterunsuccessfully attempting to avoid an unbarricaded "lip" road construction had created]).Concur—Sweeny, J.P., Catterson, Moskowitz, Renwick and Richter, JJ.