Watch Your Feet: Plaintiff Assumed Risk When Kicked In Head By Fellow Dancer (NY)
In Spruck v. Pollack and Academy of Dance Arts, plaintiff was allegedly injured while participating in a dance program run by defendants. During a rehearsal for a dance recital, plaintiff was participating in a choreographed dance when another dancer was spinning with her leg in the air and the other dancer’s foot came into contact with plaintiff’s head. Plaintiff continued with the rehearsal after the incident. Defendants [Dance instructor and school] moved for summary judgment dismissing the complaint on the grounds that the doctrine of assumption of the risk is applicable. Defendants argued that Plaintiff assumed the risk and that getting struck by other dancers during a choreographed dance is part of dancing. The lower Court granted Defendants’ motions and plaintiff appealed.
The Appellate Division, First Department upheld the lower Court decision that Defendants’ demonstrated that plaintiff voluntarily engaged in the activity of dancing and as an experienced dancer knew the risks inherent in the activity. Plaintiff had been enrolled in defendants’ dance academy for three years and participated in five to six dance competitions each year. The video of the accident submitted by Defendants further demonstrated Plaintiffs experience as a dancer. Moreover, the video of the accident established that the dance moves at the time the accident occurred did not create a dangerous condition over and above the usual dangers inherent in dancing. Plaintiff’s argument, that no one specifically informed her that getting kicked in the head was one of the risks, was found to be an unavailing argument, as it is not necessary that she foresee the exact manner for which the injury might occur, so long as there is a general awareness for potential of injury due to engagement in the activity.
Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions.