Custodi v. Town of Amherst

• Decision Date: 30 October 2012
• Citation: 2012 N.Y. Slip Op. 07225,957 N.Y.S.2d 268,980 N.E.2d 933,20 N.Y.3d 83
• Parties: Robin CUSTODI et al., Respondents, v. TOWN OF AMHERST et al., Defendants, and Peter Muffoletto et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

20 N.Y.3d 83

980 N.E.2d 933

957 N.Y.S.2d 268

2012 N.Y. Slip Op. 07225

Robin CUSTODI et al., Respondents,

v. TOWN OF AMHERST et al., Defendants,andPeter Muffoletto et al., Appellants.

Court of Appeals of New York.

Oct. 30, 2012.

Watson Bennett Colligan & Schechter, LLP, Buffalo (Joel B. Schechter of counsel), for appellants.

Andrews Bernstein & Maranto, LLP, Buffalo (Robert J. Maranto, Jr., of counsel), for respondents.

OPINION OF THE COURT

GRAFFEO, J.

In this case involving a plaintiff who fell and sustained injuries while rollerblading, we conclude that the doctrine of primary assumption of the risk does not preclude her common-law negligence claim against the landowner defendants. We therefore affirm the Appellate Division order reinstating the complaint.

In July 2007, plaintiff Robin Custodi broke her hip when she tripped and fell while rollerblading in her residential neighborhood in the Town of Amherst. Moments before the accident, plaintiff, an experienced rollerblader, noticed a truck blocking her path of travel on the street and navigated around it by skating onto a driveway entrance to reach the sidewalk running parallel to the road. Plaintiff skated by several houses before attempting to reenter the street using a driveway owned by defendants Peter and Susan Muffoletto. As plaintiff neared the end of defendants' driveway, she checked for oncoming traffic but did not stop. Plaintiff fell when one of her skates allegedly struck a two-inch height differential where the edge of defendants' driveway met a drainage culvert that ran the length of the street.

Plaintiff and her husband, suing derivatively, commenced this negligence action against defendants to recover damages for plaintiffs injuries.¹ Following discovery, defendants moved for summary judgment dismissing the complaint on two grounds. Primarily, they asserted that plaintiff assumed the risk of injury by voluntarily engaging in recreational rollerblading, thereby negating their duty of care to her as landowners. Alternatively, defendants contended that there was no triable issue of fact as to whether the height differential was a proximate cause of plaintiffs accident.

Supreme Court granted the motion and dismissed the complaint, agreeing with defendants that plaintiff assumed the risk of her injuries. A divided Appellate Division reversed and reinstated the complaint, concluding that the doctrine of primary assumption of the risk did not apply to plaintiff's activity and that a triable issue of fact existed on the question of proximate cause (81 A.D.3d 1344, 916 N.Y.S.2d 685 [4th Dept.2011] ). The dissent would have affirmed Supreme Court's dismissal of the complaint. The Appellate Division granted defendants leave to appeal on a certified question (2011 N.Y. Slip Op. 72435[U] [2011] ).

Defendants claim that the Appellate Division erred in declining to apply the doctrine of assumption of the risk to this case. Because plaintiff chose to rollerblade on their property with an awareness that a skater using the neighborhood's residential driveways and sidewalks could encounter bumps or height differentials, defendants contend that plaintiff necessarily assumed the inherent risk of a fall. Plaintiff responds that the Appellate Division correctly held that the assumption of the risk doctrine is not applicable since she was not engaged in a sporting competition or an athletic or recreative activity at a designated venue. In plaintiff's view, this case is governed by ordinary premises liability principles.

Our analysis begins with CPLR 1411, which the Legislature adopted in 1975 to abolish contributory negligence and assumption of the risk as absolute defenses in favor of a comparative fault regime. CPLR 1411 provides:

“In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributableto the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.”

Despite the text of this provision, we have held that a limited vestige of the assumption of the risk doctrine—referred to as “primary” assumption of the risk—survived the enactment of CPLR 1411 as a defense to tort recovery in cases involving certain types of athletic or recreational activities ( see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986] ). Rather than operating as a complete defense, the doctrine in the post-CPLR 1411 era has been described in terms of the scope of duty owed to a participant ( see Morgan v. State of New York, 90 N.Y.2d 471, 485, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ). Under this theory, a plaintiff who freely accepts a known risk “commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” ( Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395, 901 N.Y.S.2d 127, 927 N.E.2d 547 [2010] ).

More particularly, primary assumption of the risk applies when a consenting participant in a qualified activity “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” ( Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 356, 948 N.Y.S.2d 568, 971 N.E.2d 849 [2012] [internal quotation marks and citation omitted] ). A person who chooses to engage in such an activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” ( Morgan, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202). As a result, participants may be held to have consented to those injury-prone risks that are “known, apparent or reasonably foreseeable” ( 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 [1989] [internal quotation marks and citation omitted] ). The duty owed in these situations is “a duty to exercise care to make the conditions as safe as they appear to be” ( Turcotte, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964). On the other hand, participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced ( see Morgan, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202).

Since the adoption of CPLR 1411, we have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have “enormous social value” even while they may “involve significantly heightened risks” ( Trupia, 14 N.Y.3d at 395, 901 N.Y.S.2d 127, 927 N.E.2d 547). Hence, the continued application of the doctrine “facilitate[s] free and vigorous participation in athletic activities” ( Benitez, 73 N.Y.2d at 657, 543 N.Y.S.2d 29, 541 N.E.2d 29), and fosters these socially beneficial activities by shielding co-participants, activity sponsors or venue owners from “potentially crushing liability” ( Bukowski, 19 N.Y.3d at 358, 948 N.Y.S.2d 568, 971 N.E.2d 849).

Consistent with this justification, each of our cases applying the doctrine involved a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue. In Morgan, for example, we dismissed claims by a bobsledder injured on a bobsled course, and by two students who were injured while attending martial arts classes (90 N.Y.2d at 486–488, 662 N.Y.S.2d 421, 685 N.E.2d 202). Similarly, we applied assumption of the risk to bar claims by plaintiffs who suffered injuries while participating in collegiate baseball ( see Bukowski, 19 N.Y.3d at 358, 948 N.Y.S.2d 568, 971 N.E.2d 849); high school football ( see Benitez, 73 N.Y.2d at 658–659, 543 N.Y.S.2d 29, 541 N.E.2d 29); recreational basketball on an outdoor court ( see Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 [2000] ); professional horse racing ( see Turcotte, 68 N.Y.2d at 437, 510 N.Y.S.2d 49, 502 N.E.2d 964);...