Custodi v. Town of Amherst

• Decision Date: 10 February 2011
• Citation: 81 A.D.3d 1344,916 N.Y.S.2d 685
• Parties: Robin CUSTODI and John Custodi, Plaintiffs-Appellants, v. TOWN OF AMHERST, et al., Defendants, Peter Muffoletto and Susan Muffoletto, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 685

81 A.D.3d 1344

Robin CUSTODI and John Custodi, Plaintiffs-Appellants,

v. TOWN OF AMHERST, et al., Defendants,Peter Muffoletto and Susan Muffoletto, Defendants-Respondents.

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 10, 2011.

Andrews, Bernstein & Maranto, LLP, Buffalo (Robert J. Maranto, Jr., of Counsel), for Plaintiffs-Appellants.

Watson, Bennett, Colligan & Schechter, LLP, Buffalo (Joel B. Schechter of Counsel), for Defendants-Respondents.

PRESENT: MARTOCHE, J.P., SMITH, FAHEY, PERADOTTO, AND GREEN, JJ.

MEMORANDUM:

Plaintiffs commenced this action seeking damages for injuries sustained by Robin Custodi (plaintiff) while rollerblading on Countryside Lane in defendant Town of Amherst. Plaintiff allegedly tripped over a two-inch height differential between the apron at the end of a driveway owned by Peter Muffoletto and Susan Muffoletto (defendants) and a culvert or "C curb" (hereafter, curb) that separated the driveway from the public roadway. We agree with plaintiffs that Supreme Court erred in granting the motion of defendants seeking summary judgment dismissing the complaint against them based on the doctrine of primary assumption of the risk. "Under [that] doctrine ..., a person who voluntarily participates in a sporting activity generally consents, by his or her participation, to those injury-causing events, conditions[ ] and risks [that] are inherent in the activity" ( Cotty v. Town of Southampton, 64 A.D.3d 251, 253, 880 N.Y.S.2d 656; see generally Morgan v. State of New York, 90 N.Y.2d 471, 483-486, 662 N.Y.S.2d 421, 685 N.E.2d 202; Turcotte v. Fell, 68 N.Y.2d 432, 438-440, 510 N.Y.S.2d 49, 502 N.E.2d 964). The policy underlying the doctrine of primary assumption of the risk is "to facilitate free and vigorous participation in athletic activities" ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 657, 543 N.Y.S.2d 29, 541 N.E.2d 29; see Anand v. Kapoor, 61 A.D.3d 787, 792, 877 N.Y.S.2d 425, affd. 15 N.Y.3d 946, --- N.Y.S.2d ----, --- N.E.2d ----). The Court of Appeals has emphasized "that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks [ ] and [that the Court has] employed the notion that [the] risks may be voluntarily assumed to preserve [those] beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. [The Court has] not applied the doctrine outside of [that] limited context[,] and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displacethe principles ofcomparative causation " ( Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395, 901 N.Y.S.2d 127, 927 N.E.2d 547 [emphasis added] ).

We conclude that, under the circumstances of this case, the doctrine of primary assumption of the risk does not apply to the activity in which plaintiff was engaged at the time of her injury ( see Lauricella v. Friol, 46 A.D.3d 1459, 847 N.Y.S.2d 494). On the day of the accident, plaintiff was rollerblading along Countryside Lane when she encountered an ice cream truck that had stopped in the roadway. To avoid the truck, plaintiff rollerbladed onto the sidewalk and thereafter attempted to re-enter the roadway using defendants' driveway. As she rollerbladed down the driveway, plaintiff looked to her left and to her right for oncoming traffic. Her foot then struck or caught something, and she tripped and fell at the edge of defendants' driveway. The evidence submitted by defendants in support of their motion established that plaintiff was an experienced rollerblader and that she was aware that tripping and falling are risks inherent in the activity, which are increased when rollerblading on uneven surfaces such as sidewalks. Defendants also submitted evidence, however, establishing that plaintiff had not rollerbladed on Countryside Lane prior to the date of the accident, that she did not observe the height differential between defendants' driveway apron and the curb prior to falling and that, in her prior rollerblading experience, she had not encountered a height differential of similar dimension. Thus, it cannot be said that the height differential between defendants' driveway apron and the curb was a "known, apparent or reasonably foreseeable consequence [ ]" of rollerblading on a paved roadway, sidewalk, or driveway ( Turcotte, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964), nor can it be said "that plaintiff was aware of the [height differential] and the resultant risk" presented thereby ( Lamey v. Foley, 188 A.D.2d 157, 164, 594 N.Y.S.2d 490). To the contrary, we conclude that the height differential between defendants' driveway apron and the curb " 'created a dangerous condition over and above the usual dangers that are inherent in the sport' " of rollerblading ( Morgan, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202; see Cotty, 64 A.D.3d at 257, 880 N.Y.S.2d 656; see also Trupia, 14 N.Y.3d at 396, 901 N.Y.S.2d 127, 927 N.E.2d 547; Quackenbush v. City of Buffalo, 43 A.D.3d 1386, 1388-1389, 842 N.Y.S.2d 657; Andrews v. County of Onondaga, 298 A.D.2d 837, 747 N.Y.S.2d 631). In other words, the risk of falling on improperly maintained premises is not a risk that is inherent in the activity undertaken by plaintiff in this case ( see Weller v. Colleges of the Senecas, 217 A.D.2d 280, 282-284, 635 N.Y.S.2d 990; see generally Morgan, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).

We cannot agree with defendants that the height differential between their driveway apron and the curb was an open and obvious condition and that they are thereby absolved of liability.It is well settled that "the open and obvious nature of the allegedly dangerous condition ... does not negate the duty to maintain [the] premises in a reasonably safe condition but, [instead], bears only on the injured person's comparative fault" ( Konopczynski v. ADF Constr. Corp., 60 A.D.3d 1313, 1315, 875 N.Y.S.2d 697 [internal quotation marks omitted]; see Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40). In any event, we conclude that there is a triable issue of fact whether the height differential was open and obvious ( see Quackenbush, 43 A.D.3d at 1388-1389, 842 N.Y.S.2d 657; Westbrook v. WR Activities-Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38).

We further conclude that there is a triable issue of fact whether the height differential was a proximate cause of the accident and plaintiff's resulting injuries. " 'As a general rule, issues of proximate cause are for the trier of fact' " ( Bucklaew v. Walters, 75 A.D.3d 1140, 1142, 905 N.Y.S.2d 813). In support of their motion, defendants submitted the deposition testimony of plaintiff, who testified that, at the time of the accident, she did not know what caused her to fall. In opposition to the motion, however, plaintiffs submitted an affidavit in which plaintiff averred that, prior to entering the roadway, she felt one of her rollerblades strike something at the end of defendants'...