Lamey v. Foley

• Decision Date: 05 February 1993
• Docket Number: No. 1,1
• Parties: , Prod.Liab.Rep. (CCH) P 13,558 Daniel LAMEY, Respondent, v. David FOLEY, Beth Roll, ATV Octoberfest, Appellants, and Kawasaki Motors Corp. USA, Respondent. Appeal
• Court: New York Supreme Court — Appellate Division

Page 490

594 N.Y.S.2d 490

188 A.D.2d 157, Prod.Liab.Rep. (CCH) P 13,558

Daniel LAMEY, Respondent, v. David FOLEY, Beth Roll, ATV Octoberfest, Appellants, and Kawasaki Motors Corp. USA, Respondent. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 5, 1993.

O'Shea, Reynolds, Napier, Cummings & Kirby by Kenneth Kirby and Kevin J. Bauer, Buffalo, for appellants.

Faraci, Guadagnino, Lange & Johns by Paul K. Lange and Carol A. McKenna, Rochester, for respondent, Daniel Lamey.

Saperston & Day, P.C. by Lawrence A. Schulz, Neil A. Goldberg and James S. Nowak, Buffalo, for respondent, Kawasaki Motors Corp. USA.

Lester Schwab Katz & Dwyer (Eric A. Portuguese, of counsel), New York City, for Product Liability Advisory Council, and another, amici curiae.

Before DENMAN, P.J., and BOOMER, GREEN, BALIO and DAVIS, JJ.

DENMAN, Presiding Justice:

On October 9, 1983, plaintiff Daniel Lamey was rendered a paraplegic as a result of an all-terrain vehicle (ATV) accident that occurred while he was performing a promotional stunt at the request of a television crew. The accident occurred at a race track at which a competition was later to take place among plaintiff and other professional ATV riders. As a result of his injuries, plaintiff commenced this action against, inter alia, Kawasaki Motors Corp. USA, the designer, manufacturer and/or marketer of the ATV, and David Foley, Beth Roll, and ATV Octoberfest, who promoted the event and designed the track.

Before us are two appeals. Defendants Foley, Roll and ATV Octoberfest appeal from an order that denied their motion for summary judgment. Defendant Kawasaki appeals from a separate order that denied its motion for summary judgment. The grounds for the motion and the contentions on appeal are similar in each case. Defendants assert that, as a matter of law, plaintiff assumed the risk of his injuries, thus negating any duty on the part of defendants, and that plaintiff's conduct constituted an intervening, superseding cause of his injury. Additionally, defendant Kawasaki asserts that, as a matter of law, postsale modifications to the ATV bar recovery for plaintiff's injuries.

The records on appeal show that plaintiff, who was 22 years old at the time of the accident, had been riding ATVs for about seven years and had been racing on the rather loosely organized professional circuit for about a year. Unofficially, he was ranked as one of the top two or three professional riders in the country. There is no question that plaintiff generally understood the hazards of riding three-wheel ATVs and the particular risks that arise in connection with racing them in close confines at high speeds in proximity to other, sometimes inexperienced, racers. Plaintiff was particularly aware of the risk of losing control of his vehicle, with its inherently unstable three-wheel design, and of being thrown off the ATV into an obstacle. In fact, during a videotaped interview conducted only minutes before the accident, plaintiff expressly acknowledged the risk of crashing.

Plaintiff teamed up with Rob Selvy, an experienced ATV rider, in 1982. With plaintiff's assistance, Selvy, a skilled mechanic, modified ATVs extensively to make them "race ready". One such vehicle was the Kawasaki three-wheel Model KXT-250 "Tecate", supplied by the race promoter, that plaintiff was riding at the time of the accident. According to the record, the stock model, with a maximum speed of approximately 50 m.p.h., is not suited for racing. Accordingly, using "aftermarket" parts that they had brought with them to New York, Lamey and Selvy modified the ATV's cylinders, cylinder heads, carburetor, exhaust system, shock absorber system, frame, rear axle, wheels, tires and gearing. Those modifications significantly altered the power, speed and acceleration of the ATV, and also improved its durability, but there is no evidence that they adversely affected the general handling and stability of the vehicle. As alleged by plaintiff, that vehicle is inherently unstable because of its three-wheel design and lack of a rear differential. Because of the lack of a differential, both rear wheels must turn at the same speed. As a result, the vehicle has an inherent resistance to being turned--the vehicle "wants" to travel in a straight line--and that characteristic is more pronounced at high speeds. When the vehicle is turned at high speeds, centrifugal force tends to make it tip. To counteract that force, the driver must lean to the inside of the turn and, more importantly, must break the traction of the rear wheels so that the vehicle slides through the turn. Generally, the driver breaks the traction by manipulating the clutch and the accelerator to cause the wheels to spin. On a dirt or gravel track, such as the one where the accident occurred, that is most easily accomplished when the vehicle is being driven in the "groove", i.e., the well-traveled, hard-packed part of the track surface. On the remainder of the track, the "cushion" or loose part not packed down by vehicles, turning is more difficult and dangerous because the rear wheels of the ATV catch the loose dirt and gain traction.

The accident occurred on October 9, 1983 at the ATV Octoberfest at the Cattaraugus County Fairgrounds, an event organized by defendants Foley and Roll. Roll personally invited plaintiff to participate. The course was set up by Foley after consulting Ron Crandel, an experienced track designer. The course was on a horse race track, which was surrounded by a wooden fence. Before setting up the course, Foley asked Crandel about placing hay bales along the fence, but Crandel said he could not give advice without seeing the course. On the morning of the accident, hay bales were placed flat on the track in front of the fence, not vertically against the fence.

Plaintiff had arrived at the track on October 5th, four days before the accident, and had raced on it in the preliminary rounds held on October 8th. It is not clear whether plaintiff specifically took notice of the location of the hay bales and fence when he arrived at the track on the morning of the 9th, but the conditions were open and obvious. Plaintiff engaged in a promotional interview and simulated race in which he had been asked to participate by a television crew. The simulated race took place after plaintiff had given the interview and had taken a warm-up lap on the track and performed several stunt jumps at the request of the television crew. For the simulated race, a camera was set up amidst the hay bales in front of the fence, in the "high speed corner" adjacent to the straightaway. The first run was completed by plaintiff and several other riders without incident. They were then asked to repeat the same ride, but this time plaintiff was asked to ride "high" in the corner and throw dirt at the camera. Selvy testified that the "high slide" that plaintiff was asked to do was "very dangerous" because it required him to turn at high speed in proximity to the fence, in "no man's land", the loose area of the track where it was likely to be difficult to turn the vehicle without tipping. Nevertheless, plaintiff agreed to accommodate the television crew.

The racers left the starting line and approached the corner, with plaintiff swinging his vehicle to the outside of the corner, passing directly in front of the camera. It is disputed whether plaintiff was traveling at approximately 50 m.p.h., as he recalled, or as fast as 65 m.p.h., as Selvy testified. Whatever the case, as plaintiff passed the camera, he felt his rear wheels begin to gain traction in the soft dirt of the "cushion" on the outside of the track. As he sensed he would lose control of the vehicle and flip over, plaintiff popped the clutch and hit the accelerator to break the traction of the wheels and continue his slide. He succeeded in regaining control of his vehicle momentarily but, as he did so, his speed took him too "high" into the corner. His right rear wheel hit one of the hay bales, causing the ATV to flip. Plaintiff was thrown over the bales and into an unprotected fence post. The impact severed plaintiff's spinal cord.

Plaintiff instituted this action against Kawasaki and the event organizers and promoters, defendants Foley, Roll and ATV Octoberfest. As against Kawasaki, the amended complaint states causes of action for strict products liability and negligence, based primarily upon claims of design defect and failure to warn. As against the promoters, plaintiff alleged negligence in failing to place the hay bales properly or otherwise protect him from the risk of hitting the fence.

Following joinder of issue and discovery, both sets of defendants moved for summary judgment dismissing the complaint. The court denied both motions, giving rise to these appeals.

APPEAL OF FOLEY, ROLL AND ATV OCTOBERFEST.

There are questions of fact concerning whether plaintiff assumed the risk of his injury.

Defendants contend that, as a matter of law, plaintiff assumed the risk of his injury, thus barring his recovery. Care must be taken to distinguish between two distinct doctrines of assumption of risk. The first is embraced within the CPLR article 14-A concept of "culpable conduct attributable to the claimant" (CPLR 1411). It is akin to comparative negligence; it does not bar recovery, but diminishes recovery in the proportion to which it contributed to the injuries (CPLR 1411). We are here concerned with another category of assumption of risk, sometimes called "primary" assumption of risk (see, Turcotte v. Fell, 68 N.Y.2d 432, 438, 510 N.Y.S.2d 49, 502 N.E.2d 964). If applicable, the doctrine of primary assumption of risk is not a measure of plaintiff's comparative fault, but a measure of the defendant's duty of care. Primary assumption of risk eliminates or reduces the tort-feasor's duty of care to the plaintiff and, in the former case, constitutes a complete bar to recovery, notwithstanding CPLR...