Toro v. N.Y. Racing Ass'n, Inc.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: Toro v. N.Y. Racing Ass'n, Inc., 95 A.D.3d 999, 944 N.Y.S.2d 229, 2012 N.Y. Slip Op. 3633 (N.Y. App. Div. 2012)
• Decision Date: 08 May 2012
• Parties: Richard TORO, et al., respondents, v. NEW YORK RACING ASSOCIATION, INC., etc., defendant third-party plaintiff-appellant-respondent, Volume Services, Inc., appellant-respondent, et al., defendant; Wackenhut Corporation, third-party defendant-respondent-appellant.

95 A.D.3d 999

944 N.Y.S.2d 229

2012 N.Y. Slip Op. 03633

Richard TORO, et al., respondents,

v. NEW YORK RACING ASSOCIATION, INC., etc., defendant third-party plaintiff-appellant-respondent,Volume Services, Inc., appellant-respondent, et al., defendant;Wackenhut Corporation, third-party defendant-respondent-appellant.

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

May 8, 2012.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Ross J. Ellick of counsel), for defendant third-party plaintiff-appellant-respondent and appellant-respondent.

Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick and Glenn Kaminska of counsel), for third-party defendant-respondent-appellant.

Felice J. Muraca, Mineola, N.Y. (Mitchell Dranow of counsel), for respondents.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff, New York Racing Association, Inc., and the defendant Volume Services, Inc., appeal from so much of an order of the Supreme Court, Nassau County (Cozzens,Jr., J.), entered July 5, 2011, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, and the third-party defendant cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against the New York Racing Association, Inc., and the third-party complaint.

ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs payable by the plaintiffs to the defendant third-party plaintiff, New York Racing Association, Inc., and the defendant Volume Services, Inc., and the third-party defendant, appearing separately and filing separate briefs, the motion of the defendant third-party plaintiff, New York Racing Association, Inc., and the defendant Volume Services, Inc., for summary judgment dismissing the complaint insofar as asserted against them, and the third-party defendant's motion for summary judgment dismissing the complaint insofar as asserted against the New York Racing Association, Inc., and the third-party complaint, are granted.

The doctrine of primary 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’ ” ( Kirkland v. Hall, 38 A.D.3d 497, 498, 832 N.Y.S.2d 232, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;see Anand v. Kapoor, 15 N.Y.3d 946, 947–948, 917 N.Y.S.2d 86, 942 N.E.2d 295). The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon ( see Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973;Palladino v. Lindenhurst Union Free School Dist., 84 A.D.3d 1194, 1195, 924 N.Y.S.2d 474;Brown v. City of New York, 69 A.D.3d 893, 895 N.Y.S.2d 442;Manoly v. City of New York, 29 A.D.3d 649, 649–650, 816 N.Y.S.2d 499). “Moreover, it is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred ‘so long as he or she is aware of the potential for injury of the mechanism from which the injury results' ” ( Joseph v. New York Racing Assn., 28 A.D.3d 105, 108, 809 N.Y.S.2d 526, quoting Maddox v. City of New York, 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487 N.E.2d 553). The assessment of awareness must take place against a particular plaintiff's skill and experience, and “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” ( Joseph v. New York Racing Assn., 28 A.D.3d at 111, 809 N.Y.S.2d 526;see Morgan v. State of New York, 90 N.Y.2d at 486, 662 N.Y.S.2d 421, 685 N.E.2d 202;Maddox v. City of New York, 66 N.Y.2d at 278, 496 N.Y.S.2d 726, 487 N.E.2d 553). With respect to the sport of horse racing, there are inherent risks of falling from a horse or a horse acting in an unintended manner ( see Turcotte v. Fell, 68 N.Y.2d 432, 438–439, 510 N.Y.S.2d 49, 502 N.E.2d 964;Kirkland v. Hall, 38 A.D.3d at 498, 832 N.Y.S.2d 232;Joseph v. New York Racing Assn., 28 A.D.3d at 111, 809 N.Y.S.2d 526;Verro v. New York Racing Assn., 142 A.D.2d 396, 400, 536 N.Y.S.2d 262). While a plaintiff will not be deemed to have assumed the risk of intentional or reckless conduct or an unreasonable increase in the risk ( see Zayat Stables, LLC v. NYRA, Inc., 87 A.D.3d 1063, 1063–1064, 929 N.Y.S.2d 749;Millan v. Brown, 295 A.D.2d 409, 410, 743 N.Y.S.2d 539), where the risks of the activity are fully comprehended or...