Lewis v. Strike Holding LLC, 2007 NY Slip Op 31125(U) (N.Y. Sup. Ct. 4/26/2007)

• Decision Date: 26 April 2007
• Docket Number: Motion Cal. No: 27,0008547/2005
• Citation: 2007 NY Slip Op 31125
• Parties: BROOK LEWIS and STEPHEN DUNCAN, Plaintiffs, v. STRIKE HOLDING LLC a/k/a STRIKE LONG ISLAND, Defendant.
• Court: New York Supreme Court

Page 1

2007 NY Slip Op 31125(U)

BROOK LEWIS and STEPHEN DUNCAN, Plaintiffs, v.STRIKE HOLDING LLC a/k/a STRIKE LONG ISLAND, Defendant.

0008547/2005

Motion Cal. No: 27

Supreme Court of the State of New York, Queens County.

April 26, 2007

Motion Date: February 28, 2007.

PATRICIA P. SATTERFIELD, J.S.C.

The following papers numbered 1 to 9 read on this motion for an order, pursuant to CPLR 3212, granting summary judgment in favor of defendantStrike Holding LLC a/k/a Strike Long Island, dismissing all of plaintiffs' claims against it.

                                                  PAPERS
                                                                 NUMBERED
                Notice of Motion-Affidavits-Exhibits.............. 1 - 4
                Affirmation in Opposition-Exhibits................ 5 - 7
                Reply Affirmation................................. 8 - 9
                

Upon the foregoing papers, it is ordered that the motions are disposed of as follows:

This is an action for personal injury in which plaintiffsBrook Lewis and Stephen Duncan("plaintiffs") allege that they sustained injury on January 1, 2005, when the go-cart in which they were riding went off the track, due to the improper operation of the vehicle, while go-cart racing at the premises of defendantStrike Holding LLC a/k/a Strike ("Strike Holding"), located at Union Turnpike, New Hyde Park, New York.Strike Holding moves for summary judgment dismissing the complaint on the grounds that plaintiffs assumed the risk of injury that is inherent in go-carting and expressly waived their right to bring any lawsuit arising from engaging in that activity.

It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues.See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231(1978);Andre v. Pomeroy, 35 N.Y.2d 361, 364(1974);Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505(1^st Dept.1993).As such, the function of the court on the instant motion is issue finding and not issue determination.See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 2^nd v Dept. 1985).The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case.See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562(1980).If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position.SeeZuckerman v. City of New York, supra.

Here, Strike Holding, who submitted in support of its motion, inter alia, the deposition testimony of the plaintiffs and one of its employees, has made a prima facie demonstration of its entitlement to judgment as a matter of law by alleging that the application of the assumption of the risk doctrine, as well as executed waivers, relieve it of any liability for the happening of the accident."The doctrine of assumption of the risk provides that `by engaging in a sport or recreational activity, a participant 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 v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;seeTaylor v. Massapequa Inn Little League, 261 A.D.2d 396, 397, 689 N.Y.S.2d 523).The assumption of risk doctrine also applies to any readily observable condition of the place where the activity is carried on (citations omitted)."Sanchez v. City of New York, 25 A.D.3d 776(2d Dept.2006);see, also, La Sans Kirkland v. Raleigh Hall, 38 A.D.3d 497(2d Dept.2007).Indeed, "[p]articipants in sporting events may be held to have consented to injury-causing events which are the known, apparent, or reasonably foreseeable risks of their participation."Rosenbaum v. Bayis Ne'Emon, Inc., 32 A.D.3d 534(2d Dept.2006), citingColucci v. Nansen Park, 226 A.D.2d 336(2d Dept.1996 );Turcotte v. Fell, 68 N.Y.2d 432, 439(1986);andManoly v. City of New York, 29 A.D.3d 649(2d Dept.2006).Cf., Joseph v. New York Racing Ass'n, Inc., 28 A.D.3d 105, 111(2d Dept; 2006)["when an experienced athlete. . .is aware of the existence of a particular condition on the premises where the activity is to be performed, and actually appreciates or should reasonably appreciate the potential danger it poses, yet participates in the activity despite this awareness, he or she must be deemed to have assumed the risk of injury which flows therefrom"].

Strike Holding's manager, Michael DiFelippo, testified at his deposition that on the evening in question, plaintiffs, who were with separate groups of friends, "after paying and signing the waiver, all . . . were shown a two minute safety video."He described the go-carts as "powered by electric and . . .control[led] by remote control stationed in the middle of the track where the cart attendant . . . [controls] the speed and stop."He further testified that the "customer" can control the "speed and stop" with the brake and gas pedal; however, the carts have four different speeding settings that are controlled by employees of Strike Holding.He added that the accident at issue occurred after the speed of plaintiffs' carts, which they allegedly demonstrated no difficulty in handling, had been increased to the 3^rd highest setting.The testimony established that the accident consisted of a collision between the go-cart occupied by plaintiffStephen Duncan, which came into contact with the cart occupied by plaintiffBrook Lewis.Also submitted in support of the motion was a copy of the waiver signed by plaintiffBrook Lewis, entitled "EXPRESS ASSUMPTION OF RISK, WAIVER, AGREEMENT NOT TO SUE, AND INDEMNITY AGREEMENT."The evidence was sufficient to establish Strike Holding's entitlement, prima facie, to summary judgment in its favor.

The burden then shifted to plaintiffs to come forth with evidentiary proof in admissible form sufficient to demonstrate the existence of triable issues of fact.To meet this burden, plaintiff must show that, based upon the facts of this case, the doctrine of assumption of risk does not serve as a bar to liability because the risk was "'unissued, concealed, or unreasonably increased'( Lapinski v. Hunter Mtn. Ski Bowl, 306 A.D.2d 320, 321, 760 N.Y.S.2d 549)."Rosenbaum v. Bayis Ne'Emon, Inc., supra.Plaintiffs allege that they were riding on an indoor electric go-cart track in which the speed of the vehicles were controlled by Strike Holding, and that the accident occurred after the go-carts had completed two laps, and Strike Holding's employee shifted from the lowest speed to a higher speed.Plaintiff Duncan testified:

Q.So you went one to two laps, then they sped you up?

A.Yes, I looked at the box and can I tell that they had turned it all the way up.It wasn't, I think, there was middle speed.It was A, B, C, FD and he had it on the one right before the end and then when I looked I saw he turned it up al the way because someone was sitting in front me and I saw him turn it up.

This testimony was not inconsistent with that of Michael DiFelippo, who testified:

Q.What level were they at?

A.They were at C, the third level.

Q.It is your testimony that all the carts were handling that speed at that time?

A.(No response.)

Q.When I say "handling," going okay all at the same location?

A.They were not handling it good, but enough that we get it at that speed.

Q.When you say "not handling it good," what do you mean?

A.There was two cars on there that were giving us a little problem at that time on Level C, the third level.

When you say they were giving a little problem, what do you mean?

A.Like bumping and not driving where we thought it was secure.

Q.At that point; what, if anything, did you do?

A.We tried to drop the speed down?

Q.Did you reduce it from Level 3?

A.No, we tried to drop it; and as we were dropping the speed, the accident occurred.

Clearly, the testimony of plaintiffs and Strike Holding's employee was sufficient to raise a triable issue of fact as to whether the risk was "'unissued, concealed, or unreasonably increased.'"Rosenbaum v. Bayis Ne'Emon, Inc., supra.

In short, where, as here, there may be "faulty safety features . . ., not directly used in playing the game [or participating in the activity]," the perceived risks are `not automatically an inherent risk of the sport as a matter of law' for purposes of summary judgment (Siegel v. City of New York, 90 N.Y.2d 471, 488, 662 N.Y.S.2d 421, 685 N.E.2d 202)."Cevetillo v. Town of Mount Pleasant, 262 A.D.2d 517(2d Dept.1999).The question is whether "the injured plaintiff was subjected to a concealed or unreasonably increased risk"See, Sanchez v. City of New York, 25 A.D.3d 776(2d Dept.2006)["plaintiffs failed to raise a triable issue of fact as to whether the injured plaintiff was subjected to a concealed or unreasonably increased risk"].Such a triable issues was raised here.See, Lipari v. Babylon Riding Center, Inc., 18 A.D.3d 824(2d Dept.2005).["While Lipari assumed the risk that he could be thrown by a frightened horse, the defendant offered no evidence that Lipari, a novice horseback rider, assumed the heightened risk created by the alleged negligent conduct of the trail guides in leaving him unattended in the rear of the line of horses"];Millan v. Brown, 295 A.D.2d 409(2d Dept.2002)["While the injured plaintiff assumed the risk of falling off a horse, she...