| Lomonico v Massapequa Pub. Schools |
| 2011 NY Slip Op 04211 [84 AD3d 1033] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Carin Lomonico, an Infant, by Camille Lomonico, as Parent andNatural Guardian, Respondent, v Massapequa Public Schools,Appellant. |
—[*1] Joseph A. Solow, Hauppauge, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Marber, J.), dated August 17, 2010, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The plaintiff, an experienced high school cheerleader, allegedly was injured duringcheerleading practice when a teammate fell on her during the performance of the "liberty" stunt.The plaintiff commenced this action, alleging, inter alia, that the defendant was negligent infailing to instruct and supervise the cheerleaders properly in performing the stunt and in failing toprovide protective floor mats. The defendant moved for summary judgment dismissing thecomplaint, and the Supreme Court denied the motion. We reverse.
"[B]y engaging in a sport or recreational activity, a participant consents to those commonlyappreciated risks which are inherent in and arise out of the nature of the sport generally and flowfrom such participation" (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Trupia v Lake George Cent. SchoolDist., 14 NY3d 392, 395 [2010]). Even where the risk of injury is assumed, however, aschool must exercise ordinary reasonable care to protect student athletes voluntarily involved inextracurricular sports from "unassumed, concealed, or unreasonably increased risks" (Benitezv New York City Bd. of Educ., 73 NY2d 650, 654 [1989]).
Here, with respect to the issue of liability, the defendant established, prima facie, that theinfant plaintiff voluntarily engaged in the activity of cheerleading, including the performance ofstunts, and that, as an experienced cheerleader, she knew the risks inherent in the activity (see DiGiose v Bellmore-Merrick Cent.High School Dist., 50 AD3d 623, 624 [2008]). The defendant also made a prima facieshowing that there was not a lack of supervision by the defendant. In addition, the plaintiffassumed the [*2]obvious risk of injury from practicing on a baregym floor (see Traficenti v Moore Catholic High School, 282 AD2d 216 [2001];Fisher v Syosset Cent. School Dist., 264 AD2d 438 [1999]).
Moreover, with respect to the issue of proximate cause, the defendant demonstrated that theplaintiff did not know why the accident occurred, such that any claim of alleged negligence bythe defendant would be based "on nothing more than surmise, conjecture and speculation" (Henry v Cobleskill-Richmondville Cent.School Dist., 13 AD3d 968, 970 [2004] [internal quotation marks omitted]; see Corrado v Vath, 70 AD3d 624,625 [2010]; Tejada v Jonas, 17AD3d 448 [2005]; Curran v Esposito, 308 AD2d 428, 429 [2003]).
In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Skelos, Florio and Austin, JJ., concur.[Prior Case History: 2010 NY Slip Op 32333(U).]