Demarco v. Demarco

• Decision Date: 26 October 2017
• Docket Number: 524512.
• Citation: 154 A.D.3d 1226,63 N.Y.S.3d 586
• Parties: Judi A. DeMARCO, Respondent, v. Jeffrey J. DeMARCO et al., Appellants.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1226

63 N.Y.S.3d 586

Judi A. DeMARCO, Respondent,

v.Jeffrey J. DeMARCO et al., Appellants.

524512.

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

Oct. 26, 2017.

Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellants.

O'Connell & Aronowitz, Albany (Paul A. Feigenbaum of counsel), for respondent.

Before: EGAN JR., J.P., LYNCH, ROSE and MULVEY, JJ.

ROSE, J.

Appeal from a judgment of Supreme Court (Nolan Jr., J.), entered October 20, 2016 in Saratoga County, upon a verdict rendered in favor of plaintiff.

Plaintiff was visiting at the home of defendants, her brother and sister-in-law, when her nine-year-old nephew asked her to jump with him on the trampoline that was located in defendants' side yard. Initially, the nephew jumped in unison with the 48–year–old plaintiff, who had never been on a trampoline before, but then the nephew intentionally began jumping out of unison with her. As a result of the nephew's conduct—referred to as "double jumping"—plaintiff was thrown off balance and the trampoline mat struck her with sufficient force to fracture a number of bones in her left foot. Plaintiff thereafter commenced this negligence action to recover damages for the injuries she sustained as a result of her nephew's double jumping. At the ensuing jury trial, defendants requested that Supreme Court charge the jury regarding primary assumption of risk. Supreme Court denied defendants' request and, instead, charged the jury regarding implied assumption of risk. Ultimately, the jury found in plaintiff's favor and awarded her $220,000 for past pain and suffering and $580,000 for future pain and suffering. Defendants' subsequent motion to set aside the verdict was denied, and this appeal ensued.

The crux of defendants' argument on appeal is that Supreme Court erred in denying their request to charge the jury regarding primary assumption of risk. We are not persuaded. Pursuant to CPLR 1411, any culpable conduct attributable to a plaintiff in a personal injury action, including "assumption of risk," shall not bar the plaintiff's recovery. Despite this provision, the Court of Appeals has "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" ( Custodi v. Town of Amherst, 20 N.Y.3d 83, 87, 957 N.Y.S.2d 268, 980 N.E.2d 933 [2012] ; see Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 394–395, 901 N.Y.S.2d 127, 927 N.E.2d 547 [2010] ; Morgan v. State of New York, 90 N.Y.2d 471, 483–484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ; 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] ; Turcotte v. Fell, 68 N.Y.2d 432, 438–439, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986] ). Although the Court of Appeals has continued to express the vitality of the doctrine of primary assumption of risk, it has cautioned that the application of the doctrine "must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation" ( Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 395, 901 N.Y.S.2d 127, 927 N.E.2d 547 ; accord Custodi v. Town of Amherst, 20 N.Y.3d at 89, 957 N.Y.S.2d 268, 980 N.E.2d 933 ). Thus, as a general rule, the doctrine "should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues" ( Custodi v. Town of Amherst, 20 N.Y.3d at 89, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; see Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 395, 901 N.Y.S.2d 127, 927 N.E.2d 547 ; Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 657, 543 N.Y.S.2d 29, 541 N.E.2d 29 ; see e.g. Anand v. Kapoor, 15 N.Y.3d 946, 948, 917 N.Y.S.2d 86, 942 N.E.2d 295 [2010] ; Sykes v. County of Erie,

94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 [2000] ).

Here, defendants concede that the injury-producing activity does not fit within the narrow group of cases to which the doctrine of primary assumption of risk has been applied (see generally Custodi v. Town of Amherst, 20 N.Y.3d at 88–89, 957 N.Y.S.2d 268, 980 N.E.2d 933 ). Instead, defendants assert that this Court should find that an exception to the general rule is warranted here (see Custodi v. Town of Amherst, 20 N.Y.3d at 89 n. 2, 957 N.Y.S.2d 268, 980 N.E.2d 933 ). In our view, however, jumping on a trampoline, whether double jumping or otherwise, in the yard of a private residence "does not fit comfortably within the parameters of the [primary assumption of risk] doctrine" as set out by the Court of Appeals ( Custodi v. Town of Amherst, 20 N.Y.3d at 89, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; see Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 395–396, 901 N.Y.S.2d 127, 927 N.E.2d 547 ; Filer v. Adams, 106 A.D.3d 1417, 1418–1419, 966 N.Y.S.2d 553 [2013] ). In this regard, we find that the activity at issue here is not the type of " ‘socially valuable voluntary [sport or recreational] activity’ that the doctrine seeks to encourage" ( Wolfe v. North Merrick Union Free Sch. Dist., 122 A.D.3d 620, 621, 996 N.Y.S.2d 125 [2014], quoting Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 396, 901 N.Y.S.2d 127, 927 N.E.2d 547 ; see Duffy v. Long Beach City Sch. Dist., 134 A.D.3d 761, 763–764, 22 N.Y.S.3d 88 [2015] ; but see Liccione v. Gearing, 252 A.D.2d 956, 956, 675 N.Y.S.2d 728 [1998], lv. denied 92 N.Y.2d 818, 685 N.Y.S.2d 420, 708 N.E.2d 177 [1999] ), nor would application of the doctrine under these facts serve to promote the policy rationale underlying its continued retention—namely, "to facilitate free and vigorous participation in athletic activities" ( Benitez v. New York City Bd. of Educ., 73 N.Y.2d at 657, 543 N.Y.S.2d 29, 541 N.E.2d 29 ; accord Custodi v. Town of Amherst, 20 N.Y.3d at 88, 957 N.Y.S.2d 268, 980 N.E.2d 933 ; Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 358, 948 N.Y.S.2d 568, 971 N.E.2d 849 [2012] ; Trupia v. Lake George Cent. School Dist., 14 N.Y.3d at 395, 901 N.Y.S.2d 127, 927 N.E.2d 547 ). Accordingly, we decline to create an exception under the circumstances presented in this case.

Next, defendants raise several issues with respect to the implied assumption of risk charge given by Supreme Court. At trial, however, the only objection that defendants raised was to the court's decision to provide the jury with an implied assumption of risk charge instead of a primary assumption of risk charge. In light of this, we find that defendants' specific claims regarding the charge as given are wholly unpreserved for our review (see Hunt v. Bankers & Shippers Ins. Co. of N.Y., 50 N.Y.2d 938, 940, 431 N.Y.S.2d 454, 409 N.E.2d 928 [1980] ; Curanovic v. New York Cent. Mut. Fire Ins. Co., 22 A.D.3d 975, 976, 803 N.Y.S.2d 234 [2005] ). Although this Court has the power to "order a new trial when an unpreserved error in a jury charge is fundamental" ( Vallone v. Saratoga Hosp., 141 A.D.3d 886, 890, 35 N.Y.S.3d 544 [2016] ; see Alvarado v. Dillon, 67 A.D.3d 1214, 1216, 888 N.Y.S.2d 673 [2009] ), we find that no error occurred here inasmuch as Supreme Court's charge followed the pattern jury instruction regarding implied assumption of risk (see PJI 2:55 ) and appropriately conveyed what the jury was to consider in determining whether plaintiff assumed the risk of injury from the...