Zambrana v. City of New York
| Decision Date | 10 June 1999 |
| Parties | Amy ZAMBRANA, Plaintiff-Appellant, v. The CITY OF NEW YORK, et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Tobi R. Salottolo, for Plaintiff-Appellant.
Patrick M. Murphy, for Defendants-Respondents.
SULLIVAN, J.P., ROSENBERGER, TOM, MAZZARELLI and WALLACH, JJ.
Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered on or about January 30, 1998, which granted defendants' motion for summary judgment dismissing the complaint, affirmed, without costs.
Plaintiff stated in her deposition that moments before a teenage skater collided with her, causing her fall and injury, she had complained to a skating rink guard that a "couple of teenage children ... were skating rather fast." However, neither her complaint nor any other proof demonstrates a prevailing level of risk on defendants' public ice rink beyond that ordinarily assumed by those undertaking the sport of skating at such a facility. Collisions between skaters, such as the one sustained here, are a common occurrence and a risk which all skaters assume (Kleiner v. Commack Roller Rink, 201 A.D.2d 462, 607 N.Y.S.2d 142; Lopez v. Skate Key, 174 A.D.2d 534, 571 N.Y.S.2d 716). This was an impact the guards could not have prevented, even with the most intensive supervision (Winter v. City of New York, 208 A.D.2d 827, 617 N.Y.S.2d 833; Baker v. Eastman Kodak Co., 34 A.D.2d 886, 312 N.Y.S.2d 449, affd. 28 N.Y.2d 636, 320 N.Y.S.2d 247, 269 N.E.2d 36).
What looms unduly large in the dissent's narrative of the facts is the instruction by a 16- or 17-year old female skating guard to plaintiff not to hold onto the perimeter wall, uttered shortly before plaintiff's collision with another skater. The suggestion is made that this directive is "further evidence of negligence" because nothing in the handbook of rules for this rink contains such a blanket prohibition. This observation overlooks the following printed instructions on "Crowd Control," furnished along with the rules to every guard employed at the rink: "Certain portions of the ice are potential 'problem' areas, they are the ice entrance and exits, center ice, far end of the ice and the sides where people congregate." Furthermore, plaintiff herself testified that the ice adjacent to the wall was "bumpy."
Thus, the young guard's instruction to relinquish the wall support and to encourage plaintiff to move toward safer ice instead of providing a slow-moving obstruction to other skaters contributing to congestion at the side was a fully authorized and rational action to increase plaintiff's safety, not merely a mindless assertion of arbitrary authority as depicted by the dissent. Plaintiff testified that she complained to the guard: This testimony, indicating that the guard had begun with plaintiff to solve a problem of skaters hanging on at the side of the rink, would scarcely constitute negligence in carrying out the guard's duties, since she obviously had to start somewhere.
It should be noted that the record contains admissible evidence of the skating guard's age, in the form of lay opinion testimony (People v. Roldan, 211 A.D.2d 366, 369, 627 N.Y.S.2d 1014, affd. 88 N.Y.2d 826, 643 N.Y.S.2d 960, 666 N.E.2d 553). The relevance of the guard's age is not, as the dissent would have it, for creation of a possible cause of action (never pleaded) for negligent hiring of underage personnel. Nor is it mentioned to introduce a diminished standard of care. Rather, it is cited to indicate the absence of any physical intimidation that could have accompanied the skating guard's directive.
The "handrail" referred to in the dissent was nothing more than the top of the perimeter wall surrounding the rink. There was no bannister or railing, once a skater got beyond the entryway to the rink. To equate this wall with a "safety device" is to imply that the skating guard somehow deprived plaintiff of the equivalent of a helmet, knee-pads, elbow- or wrist-guards, which was simply not the case. That misperceives the duties of the skating guard, which included encouraging all skaters to keep moving around the rink--the more accomplished skaters closer to the center of the ice, and the novices toward the outside--but moving, nonetheless. Stopping on an ice rink, whether congregating in clusters or simply tarrying by the perimeter wall, creates a hazard that the skating guard was not only entitled, but required, to address. The fact that this unfortunate accident occurred moments after she encouraged plaintiff to leave the security of the perimeter wall certainly does not establish a proximate link to defendants' liability (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 341, 162 N.E. 99; Cunillera v. Randall, 196 A.D.2d 75, 608 N.Y.S.2d 441, lv. denied 84 N.Y.2d 808, 621 N.Y.S.2d 518, 645 N.E.2d 1218).
I dissent and would reverse the grant of summary judgment to defendants. The majority's analysis of the disputed events rests largely on speculation or the premature resolution of questions of fact --- ignoring the well-settled principle that we must draw all factual inferences in favor of plaintiff as the party opposing summary judgment (Pirrelli v. Long Is. R.R., 226 A.D.2d 166, 641 N.Y.S.2d 240). Under this standard, it cannot be said that the conduct of defendants' employee was reasonable and adequate as a matter of law. An issue of fact exists as to whether the attendant at the skating rink, owned and operated by defendants, negligently increased plaintiff's risk of injury by ignoring other skaters' unruly behavior and by forbidding plaintiff to use the handrail, a safety device provided for patrons (see, Nunez v. Recreation Rooms & Settlement, Inc., 229 A.D.2d 359, 360, 645 N.Y.S.2d 789).
On December 30, 1995, plaintiff was teaching her 5-year-old son to skate at Lasker Rink in Central Park. Because he was a beginning skater and several teenagers at the rink were skating very fast, she held onto her son with one hand and held onto the handrail at the top of the wall with her other hand while she skated. The skate guard, who was employed by defendants to maintain safe skating conditions at the rink, approached plaintiff and ordered her not to hold onto the handrail, stating that it was against the rules. The guard ignored plaintiff's protest that she needed to protect herself and her son from the teenagers who were skating too fast. Plaintiff complied with the order, let go of the handrail, and had only skated about 20 feet further when one of those teenagers knocked her over as he squeezed by her in the small space between her body and the wall. Plaintiff was knocked to the surface of the ice and allegedly was seriously injured.
While the operator of a sports facility is not liable for the ordinary hazards of the sport (Heard v. City of New York, 82 N.Y.2d 66, 71, 603 N.Y.S.2d 414, 623 N.E.2d 541, reconsideration denied 82 N.Y.2d 889, 610 N.Y.S.2d 155, 632 N.E.2d 465), a rink operator may be held liable if it was aware of the hazard and unreasonably increased it (see, O'Brien v. Midtown Skating Club of New York, 77 A.D.2d 829, 430 N.Y.S.2d 621), such as by compelling plaintiff to disregard precautions she would otherwise take (see, Benitez v. Bd. of Educ., 73 N.Y.2d 650, 658, 543 N.Y.S.2d 29, 541 N.E.2d 29). "It is well established that participants may be held to have consented, by their participation, to injury-causing events which are known, apparent or reasonably foreseeable, but they are not deemed to have consented to acts which are reckless or intentional" (O'Neill v. Daniels, 135 A.D.2d 1076, 1077, 523 N.Y.S.2d 264, lv. denied 71 N.Y.2d 802, 527 N.Y.S.2d 768, 522 N.E.2d 1066). Here, it was foreseeable that the risk of injury to plaintiff would increase where defendants, through the conduct of their employee, made unavailable a safety device that was there to benefit persons such as herself (see, Larson v. Nassau Elec. R.R. Co., 223 N.Y. 14, 20, 119 N.E. 92).
Courts have also drawn a distinction between a sudden collision between skaters proceeding at a normal pace, which is an ordinary risk of the sport, and a collision caused by another skater's reckless behavior (Shorten v. City of White Plains, 224 A.D.2d 515, 637 N.Y.S.2d 791). In numerous cases involving the latter situation, the rink's motion for summary judgment based on assumption of risk or lack of proximate cause has been denied, at least where the persons supervising the rink had notice of the skater's reckless conduct but failed to act (Nunez, supra; Williams v. Skate Key, Inc., 240 A.D.2d 277, 659 N.Y.S.2d 741).
Particularly in light of our obligation to draw factual inferences in plaintiff's favor, we should not conclude, as a matter of law, that a woman with a small child assumes the risk of being forced to abandon a safety device and enter into the thick of a fast-moving crowd of speeding skaters whether she feels competent to keep up with them or not. Plaintiff did not voluntarily assume the risk of being injured by the speeding skaters. Rather, she was forced to suffer an increased risk by the skate guard who ignored her complaints about the unruly skaters and prevented her from using a provided safety device. Further evidence of negligence arises from the handbook of rules for rink guards (obtained by plaintiff from defendants in discovery and submitted in the record), which discloses no rule forbidding patrons to use the handrail. In fact, it instructs guards to prevent fast skating and to keep skaters from cutting in and out of traffic. The guard nonetheless allowed these rules to be violated by the speeding skaters even after plaintiff put her on notice of the danger.
Like the motion court, the...
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