Weller v. Colleges of the Senecas

• Decision Date: 22 December 1995
• Citation: 217 A.D.2d 280,635 N.Y.S.2d 990
• Parties: , 106 Ed. Law Rep. 282 Donald R. WELLER, Appellant, v. COLLEGES OF THE SENECAS, a/k/a Hobart and William Smith Colleges, and Marriott Management Services Corp., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 990

635 N.Y.S.2d 990

217 A.D.2d 280, 106 Ed. Law Rep. 282

Donald R. WELLER, Appellant, v. COLLEGES OF THE SENECAS, a/k/a Hobart and William Smith Colleges, and Marriott Management Services Corp. Respondents.

Supreme Court, Appellate Division Fourth Department.

Dec. 22, 1995.

Bond, Schoeneck and King, L.L.P. by H.J. Hubert, Syracuse, for Appellant.

Saperston and Day, P.C. by Anthony Piazza, Rochester, for Respondent, Colleges of the Senecas a/k/a Hobart and William Smith.

Chamberlain, D'Amanda, Oppenheimer and Greenfield by Thomas Collins, Rochester, for Respondent, Marriott Management Services Corp.

Before GREEN, J.P., and PINE, FALLON, CALLAHAN and DOERR, JJ.

CALLAHAN, Justice:

This action arises out of an accident that occurred on September 8, 1989 on the campus of Hobart College. Plaintiff, a student at the college, was riding his bike on campus at night when he veered off a paved path onto the grass. The front tire struck a tree root causing plaintiff to be catapulted over the handlebars onto the ground. The impact rendered him a quadriplegic.

Plaintiff commenced this negligence action against Colleges of the Senecas a/k/a Hobart and William Smith Colleges (Hobart), as landowner, and Marriott Management Services Corp. (Marriott), which was under contract to maintain the buildings and grounds. Hobart served an answer containing the affirmative defenses of assumption of risk and General Obligations Law § 9-103, and a cross claim against Marriott. Marriott served an answer containing an affirmative defense of plaintiff's culpable conduct and a cross claim against Hobart.

Upon completion of discovery, Hobart moved for summary judgment dismissing the complaint and Marriott's cross claim on the grounds that plaintiff assumed the risk of injury, it owed plaintiff no duty to prevent the accident under General Obligations Law § 9-103, and it was not negligent. Marriott moved for summary judgment dismissing the complaint and Hobart's cross claim on the grounds that plaintiff assumed the risk of injury, plaintiff's conduct was the sole proximate cause of the accident, it owed no duty to plaintiff to prevent the accident, and it was not negligent. Plaintiff opposed the motions and cross-moved to dismiss Hobart's affirmative defense of General Obligations Law § 9-103.

Supreme Court granted defendants' motions, denied plaintiff's cross motion and dismissed the complaint. The court concluded that defendants were entitled to summary judgment based on the doctrine of primary assumption of risk, and that Hobart was also entitled to summary judgment based on General Obligations Law § 9-103.

Plaintiff contends that the doctrine of primary assumption of risk does not apply because this action is based, not upon an inherent known risk of bicycling on a college campus, but upon the negligence of defendants in creating and maintaining an unlighted "desired pathway" containing a concealed root. Plaintiff contends that hitting a tree root is not a risk inherent in bicycling on campus but, even if it is, the doctrine of primary assumption of risk does not apply because he did not know of the existence of the root. Plaintiff also contends that defendants owed him a duty to exercise reasonable care under the circumstances and that a jury could find that the duty included the obligation to inspect the desired pathway for hazards. We agree.

There are two distinct doctrines of assumption of risk (see, Rodriguez v. New York City Hous. Auth., 211 A.D.2d 328, 333, 628 N.Y.S.2d 82; Lamey v. Foley, 188 A.D.2d 157, 163, 594 N.Y.S.2d 490). The first is not an absolute defense, but rather, is based on comparative fault and reduces the recovery of plaintiff in the proportion that his culpable conduct contributed to the accident (see, CPLR 1411; Turcotte v. Fell, 68 N.Y.2d 432, 438, 510 N.Y.S.2d 49, 502 N.E.2d 964; Rodriguez v. New York City Hous. Auth., supra; Lamey v. Foley, supra ). The second, primary assumption of risk, is based on principles of duty and is a complete bar to recovery (see, Turcotte v. Fell, supra, at 437-439, 510 N.Y.S.2d 49, 502 N.E.2d 964; Cohen v. Heritage Motor Tours, 205 A.D.2d 105, 108, 618 N.Y.S.2d 387; Lamey v. Foley, supra, at 163, 594 N.Y.S.2d 490).

The doctrine of primary assumption of risk generally applies to situations in which the plaintiff is injured while voluntarily participating in a sporting or entertainment activity and the injury-causing event is a known, apparent or reasonably foreseeable consequence of participation (Turcotte v. Fell, supra, at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; Cohen v. Heritage Motor Tours, supra; Lamey v. Foley, supra ). The plaintiff's informed consent to the risks inherent in participating in the activity relieves the defendant of its duty of reasonable care to the plaintiff (see, Turcotte v. Fell, supra, at 438, 510 N.Y.S.2d 49, 502 N.E.2d 964).

"To establish plaintiff's assumption of risk, a defendant must show that plaintiff was aware of the defective or dangerous condition and the resultant risk, although it is not necessary to demonstrate that plaintiff foresaw the exact manner in which his injury occurred" (Lamey v. Foley, supra, at 164, 594 N.Y.S.2d 490, citing Maddox v. City of New York, 66 N.Y.2d 270, 278, 496 N.Y.S.2d 726, 487 N.E.2d 553). Probably the most important factor in determining whether a plaintiff assumed the risk of injury is whether the risk is inherent in the activity (see, Owen v. R.J.S. Safety Equip., 79 N.Y.2d 967, 970, 582 N.Y.S.2d 998, 591 N.E.2d 1184; Lamey v. Foley, supra ). Generally, individuals consent to injury-causing events that are known, apparent or reasonably foreseeable consequences of participation, but do not consent to unassumed, concealed or unreasonably increased risks (see, Lamey v. Foley, supra, at 163-164, 594 N.Y.S.2d 490). If "the risks are fully comprehended or obvious and the plaintiff has consented to them, the defendant has satisfied its only duty of care which is to make the conditions as safe as they appear to be" (Cohen v. Heritage Motor Tours, supra, at 108, 618 N.Y.S.2d 387 [citations omitted]; see, Turcotte v. Fell, supra, at 438-439, 510 N.Y.S.2d 49, 502 N.E.2d 964).

Hobart and Marriott have the burden to establish as a matter of law that plaintiff's action is barred by the doctrine of primary assumption of risk (see, Adams v. Rochester Gas & Elec. Corp., 191 A.D.2d 960, 594 N.Y.S.2d 501). Generally, whether the plaintiff assumed a risk by participating in a sport is a question for the jury; dismissal of the complaint is appropriate only when the proof before the court reveals no triable issue of fact (see, McKenney v. Dominick, 190 A.D.2d 1021, 593 N.Y.S.2d 644). Of course, in the procedural posture of a summary judgment motion by defendants, the court must accept plaintiff's evidence as true and grant it every favorable inference (see, e.g., Hartford Ins. Co. v. General Acc. Group Ins. Co., 177 A.D.2d 1046, 1047, 578 N.Y.S.2d 59).

In this case, plaintiff testified at an examination before trial that, although he had biked between the two trees on prior occasions, the first time he noticed the root was a split second before his front tire hit it. Plaintiff averred in an affidavit that Hobart students had created a "desired pathway" between the trees that connected to the paved path. The photographs reveal, contrary to defendants' contentions, that the accident did not occur in the middle of a grassy field.

Marriott's grounds supervisor testified that Marriott's policy was to remove tree roots that presented a tripping hazard and admitted that he was aware that students had created at least one desired pathway off the end of the paved path and that students rode bikes in the area where plaintiff hit the root. Contrary to defendants' contentions, a jury could reasonably find that a tree root is not necessarily an inherent feature of a path adjacent to trees.

Although plaintiff's conduct of riding between the trees after dark may have been...