Butchello v. Herberger

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered December 22, 2015. The order denied the motion of defendant Michael J. Herberger for summary judgment dismissing the complaint against him.

It is hereby ordered that the order so appealed from is

Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained while playing in an intercollegiate junior varsity football game. In his complaint, plaintiff alleged, inter alia, negligent and/or reckless conduct on the part of the college that fielded the opposing team, that team’s coach, and Michael J. Herberger (defendant), the opposition player who allegedly injured plaintiff. Defendant moved for summary judgment dismissing the complaint against him on the ground that plaintiff assumed the risk of his injury as a matter of law. Supreme Court dénied the motion, and we now reverse.

“As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v Fell, 68 NY2d 432 , 439 [1986], citing Maddox v City of New York, 66 NY2d 270 , 277-278 [1985]). Whether a plaintiff should be deemed to have made an informed estimate of the risks involved in an activity before deciding to participate depends upon the openness and obviousness of the risk, the plaintiff’s background, skill and experience, the plaintiff’s own conduct under the circumstances, and the nature of the defendant’s conduct (see Morgan v State of New York, 90 NY2d 471 , 485-486 [1997]). To establish a plaintiff’s assumption of the risk, a defendant must show that the plaintiff was generally aware of the risk that befell him, but it is not necessary to demonstrate that the plaintiff foresaw the exact manner in which his injury occurred (see Maddox, 66 NY2d at 278 ; Lamey v Foley, 188 AD2d 157 , 164 [1993]).

We agree with defendant that plaintiff’s action is barred by the doctrine of primary assumption of the risk and that the court thus erred in denying the motion. Defendant sustained his burden on the motion of demonstrating that plaintiff, an experienced football player, voluntarily assumed the risk of the injury by participating in the game (see Benitez v New York City Bd. of Educ., 73 NY2d 650 , 657-659 [1989]; Serrell v Connetquot Cent. School Dist. of Islip, 19 AD3d 683 , 683-684 [2005]; see also Hagon v Northport-East Northport Union Free School Dist. No. 4, 273 AD2d 441 , 441 [2000]). In opposition to the motion, plaintiff failed to raise a triable issue of fact concerning whether he was subjected to a concealed or unseasonably increased risk (see Serrell, 19 AD3d at 683-684 ; Hagon, 273 AD2d at 441-442 ), or one that was otherwise not inherent in

Present—Centra, J.P., Carni, NeMoyer and Curran, JJ.