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Did the Skater Assume the Risk? (NY)

July 16, 2021

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<p style="text-align: justify;">In <em><a href="">Goulet v Pier 2 Roller Ring at Brooklyn Bridge Park</a>,</em> the Appellate Division, Second Department addressed whether the defendant was entitled to summary judgment dismissing the plaintiff’s complaint.</p>
<p style="text-align: justify;">Plaintiff alleged personal injuries when roller skating at a rink operated by defendant. At the time of the alleged fall, plaintiff was an experienced skater, and skating backwards when she tripped over an uneven portion of the rink.</p>
<p style="text-align: justify;">The general manager for the defendant testified that “where the plaintiff fell periodically "buckl[ed]" due to an expansion joint”. However, when this condition was observed, the staff placed an orange cone there to warn the skaters – and the general manager observed the cone at this location prior to plaintiff’s alleged accident. In addition, the plaintiff even acknowledged that she had seen the cone and "probably . . . gone around" it on two occasions prior to this accident.</p>
<p style="text-align: justify;">The court stated, "Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity "consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation". (citations omitted).  The court went on to state, “When a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, [the defendant] cannot be charged with negligence'" (Kannavos v Yung-Sam Ski, Ltd., 187 AD3d at 730, quoting Cotty v Town of Southampton, 64 AD3d 251, 254).</p>
<p style="text-align: justify;">The court held that defendants were entitled to summary judgment based on the doctrine of primary assumption of risk, and that “plaintiff chose to skate backwards in close proximity to the prominent orange cone at the time of the accident”.</p>
<p style="text-align: justify;">This decision serves as a reminder that if plaintiff is aware of a dangerous condition, that they may have assumed the risk, and in turn, not owed a duty of care.</p>
<p style="text-align: justify;">Thanks to Corey Morgenstern for his contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.</p>

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