Hope v. Holiday Mountain Corp.

the area, at which point plaintiff allegedly was struck by a young boy who had come “flying down the slide” behind them. As a result of this collision, plaintiff purportedly fell to the ground arid, in so doing, fractured her left wrist.

Plaintiff thereafter commenced this negligence action against defendants, alleging that they failed to maintain a safe distance between patrons using the Fun Slide in order to avoid collisions at the termination thereof. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint, contending that plaintiffs action was barred by the doctrine of primary assumption of the risk. Supreme Court denied defendants’ motion, and this appeal by defendants ensued.

“Under the doctrine of primary assumption of the risk, 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. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks” (Fenty v Seven Meadows Farms, Inc., 108 AD3d 588 , 588 [2013] [citations omitted]; see Custodi v Town of Amherst, 20 NY3d 83 , 88 [2012]; Morgan v State of New York, 90 NY2d 471 , 484-485 [1997]; Layden v Plante, 101 AD3d 1540 , 1540-1541 [2012]). “Awareness of the risk of engaging in a particular activity is to be assessed against the background of the skill and experience of the particular plaintiff’ (DiBenedetto v Town Sports Intl., LLC, 118 AD3d 663 , 663-664 [2014] [internal quotation marks and citation omitted]; see Morgan v State of New York, 90 NY2d at 486 ), and application of the doctrine generally presents a question of fact for a jury to resolve (see Layden v Plante, 101 AD3d at 1541 ).

The crux of defendants’ argument on appeal is that plaintiff, in violation of posted signs warning her to remain in her own lane when exiting the Fun Slide,^[1] crossed into another patron’s lane and, in so doing, voluntarily assumed the known and obvious risk of being struck by someone else descending the slide; hence, defendants’ motion for summary judgment should have been granted. The flaw in defendants’ argument on this point is

that it ignores the factual dispute as to the manner in which plaintiffs accident occurred and, more to the point, fails to address the issue of whether the park’s staffing and operation of the Fun Slide on the day in question unreasonably increased the risk posed to plaintiff. As the record contains numerous questions of fact that cannot be resolved at this juncture, defendants’ motion for summary judgment dismissing the complaint was properly denied.^[2]

With respect to the accident itself, plaintiff testified that after she and the student ascended the stairs to the top of the slide, they retrieved their respective bags and sat down. According to plaintiff, as one sits at the top of the slide looking down, the student sat in the middle of the three available lanes, while plaintiff sat in the lane to the student’s left and the lane to the far right remained empty. Upon reaching the end of the slide, plaintiff stood up and moved to the adjacent middle lane to assist the student, who was sitting at the bottom of the slide “giggling.” In the process of doing so, plaintiff testified, she was struck by a young boy “who came flying down the slide . . . [i]n the middle [lane],” i.e., the same lane in which the student had just descended, causing her to fall to the ground. The attendant assigned to the Fun Slide on the day of the accident, however, could not recall with any degree of certainty which lane(s) plaintiff, the student or the young boy used in descending the slide and testified that plaintiff was injured when she tripped over the young boy at the base of the slide while “coming forward ... to help her patient.” This conflicting testimony creates a question of fact as to plaintiffs position on the slide relative to both the student and the young boy, as well as the manner in which she was injured, thereby precluding an award of summary judgment (see generally Ortman v Logsdon, 121 AD3d 1388 , 1389-1390 [2014]).

Moreover, even accepting that the risk of colliding with another patron is a risk inherent in the use of the Fun Slide (cf. Mussara v Mega Funworks, Inc., 100 AD3d 185 , 192 [2012]; Zachary G. v Young Israel of Woodmere, 95 AD3d 946 , 947 [2012], lv denied 20 NY3d 857 [2013]), the record nonetheless contains a question of fact as to whether the park’s employees unreasonably heightened the risk of a collision at the base of

the slide by failing to adequately staff or supervise the Fun Slide on the day in question. The park’s manager testified that park rules required the attendant assigned to the Fun Slide to be stationed at the bottom of the slide, which is where the attendant was positioned at the time of plaintiffs accident. The manager further testified, however, that a second attendant would be stationed at the top of the slide on days when patron traffic was heavy or if “disabled children” were in attendance. In this regard, although the manager stated that attendance at the park was “dead” on the day of plaintiffs accident, the Fun Slide attendant testified that traffic on the slide that day was “moderate [to] heavy.” Similarly, while the manager denied knowing that a group from the Center would be at the park on the day in question, he acknowledged that groups from the Center and other organizations serving developmentally challenged clients were at the park “every day of the week.” Additionally, the manager’s testimony demonstrated that he was aware of both the potential need for a Center staff member to assist a student in exiting the slide and the possibility of a collision, stating, “We always let them help their clients, but we make them stand in front [of the slide] on the green carpet [located at the end of the slide] . . . because you never know if somebody else is going to come down behind them.”^[3] Finally, the record contains conflicting testimony as to whether Fun Slide patrons could obtain their burlap bags and proceed to the top of the slide before other participants had completed their run and safely exited the area at the bottom of the slide^[4] and, further, whether the attendant was adequately supervising the Fun Slide patrons prior to plaintiff’s accident (cf. Huneau v Maple Ski Ridge, Inc., 17 AD3d 848 , 849 [2005]; compare Youmans v Maple Ski Ridge, Inc., 53 AD3d 957 , 959-960 [2008]). In light of the foregoing, defendants’ motion for summary judgment dismissing the complaint was properly denied (see gener