Gotz v State of New York

[*1] Gotz v State of New York 2006 NY Slip Op 50848(U) [12 Misc 3d 1151(A)] Decided on April 24, 2006 Ct Cl Mignano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 24, 2006
Ct Cl

ANNA M. GOTZ and RUBEN GOTZ, Claimants,

against

THE STATE OF NEW YORK, Defendant.



108891



For Claimants:

Walter J. Sakowski, Esq.

For Defendant:

Hon. Eliot Spitzer

Attorney General of the State of New York

By: Rachel Zaffrann, Assistant Attorney General

Stephen J. Mignano, J.

This motion for summary judgment is brought by defendant, State of New York.

The essential facts in this case are undisputed. On January 20, 2002, claimant [FN1] and her family [FN2] arrived at Bear Mountain State Park sometime between 1:00 and 1:30 p.m. (Exhibit C attached to Motion, Deposition Transcript, Page 26) and her grandchildren began sledding down a hill. Claimant observed the sledding from a sidewalk near the hill for approximately 1½ to 2 hours (Exhibit C, Pages 30-31). Mrs. Gotz also noticed other people sledding down the hill to the edge of the sidewalk where she was standing (Exhibit C, Pages 34, 45-46). At approximately 3:30 p.m., while standing on the sidewalk at the bottom of the sledding hill, Mrs. Gotz turned her back to the sledders to observe the view. At that time approximately 20 to 30 people were sledding on the hill (Exhibit C, Pages 25-26, 34-36). While her back was turned to the sledders, one sledder collided with her causing her to fall onto the sidewalk.

The claim alleges that the State was negligent, inter alia, in failing to secure the area where individuals could sleigh ride, in failing to place markers indicating the limits of the sledding area, in failing to post warning signs indicating possible dangers to the public and in failing to properly [*2]supervise the maintenance of the grounds at the park.

As set forth in the defendant's supporting memorandum of law, the State seeks summary judgment dismissing the claim on two grounds: (1) claimant was a spectator to a recreation event and thus assumed the obvious risk of being struck by a sled; (2) General Obligations Law (hereinafter GOL) § 9-103 protects the State from liability in this case.

The Court is well aware that summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920; Wanger v Zeh, 45 Misc 2d 93 affd 26 AD2d 729).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra at p 853).

The State cites various cases granting summary judgment to defendants where plaintiffs sued for injuries sustained while a spectator at a sporting event (see Sutton v Eastern NY Youth Soccer Assn., Inc., 8 AD3d 855 [father sued when errant soccer ball struck him while he was a spectator at son's soccer game; defendant's summary judgment motion granted based on assumption of risk doctrine]; Procopio v Town of Saugerties, 20 AD3d 860 [plaintiff was struck in the head by a baseball while standing at a concession stand at baseball game; defendant's summary judgment motion granted because assumption of risk applies to not only participants of sporting events but to spectators and bystanders who are not actively engaged in watching the event at the time of their injury]; Koenig v Town of Huntington, 10 AD3d 632 [plaintiff, while a spectator at a children's baseball game, was struck in the eye by a baseball thrown from an adjacent ball field; summary judgment for defendant appropriate because plaintiff voluntarily placed herself in close proximity to dangerous situation - a baseball field]. The State argues that the common thread is the courts' conclusion that the risk of being injured by the apparatus of a sport is an inherent risk assumed by spectators of the sport. Further, the spectator need not have been observing a formal, organized recreation activity since even watching a casual game of catch may trigger the assumption of risk doctrine (Sutfin v Scheuer, 145 AD2d 946, affd 74 NY2d 697 ).

In the case at bar, defense counsel asserts that claimant assumed the risk of being struck by a sled and this risk was both open and obvious given that she was at the bottom of the sledding hill. Prior to the accident, claimant had observed other people sled down the hill to the edge of the sidewalk where she was standing. It is alleged that claimant further increased this risk by turning her back on the sledding hill despite the activity on it. Defendant argues that since claimant was injured by an apparatus of the activity at which she was a spectator, the claim must be dismissed.

In opposition, claimants' counsel asserts that in order for claimant to have assumed a risk, she must have known and fully appreciated the risk (McCabe v Easter, 128 AD2d 257). He asserts there is no evidence that claimant could have or should have known that standing on the sidewalk was a danger zone which subjected her to possible injury (Sakowski Affirmation, Paragraph 6). Counsel further asserts that the case law cited by defendant is inapplicable to the instant case because claimant was not engaged in sledding nor was she actually watching people sledding at the time she was [*3]injured (id. Paragraph 8)[FN3].

The doctrine of assumption of risk can apply not only to participants in sporting events, but also to spectators and bystanders who are not actively engaged in watching the event at the time of their injury (Procopio v Town of Saugerties, 20 AD3d 860, supra; Sutton v Eastern NY Youth Soccer Assn., Inc., 8 AD3d 856, supra; Sutfin v Scheuer, 145 AD2d 946, 947-948 affd 74 NY2d 697, supra). Indeed, "the spectator at a sporting event, no less than the participant, accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball * * * The timorous may stay at home.' " (Akins v Glens Falls City School Dist., 53 NY2d 325, 329, quoting Murphy v Steeplechase Amusement Co., 250 NY 479, 482-483 [Cardozo, Ch. J.]).

Here, claimant admitted at her deposition that she was at the park specifically to watch her grandchildren sledding and was aware that other people were sledding on the hill and field. She further acknowledges observing some participants coming very near her position on the sidewalk. Under these circumstances, the Court finds that claimant's presence at the sledding hill rendered her a voluntary spectator to the sledding which was in progress throughout the day (Sutton v Eastern NY Youth Soccer Assn., Inc., supra at 857). The act of turning her back to the activity is hardly a mitigative factor here.

In a suit against participants in a game, a spectator generally will be held to have assumed the risks inherent in the game, including the specific risk of being struck (Kreil v County of Niagara, 8 AD3d 1001; Sutfin v Scheuer, 145 AD2d 946, 947 affd 74 NY2d 697, supra; see Honohan v Turrone, 297 AD2d 705; Cuesta v Immaculate Conception R.C. Church, 168 AD2d 411). At her deposition, claimant testified that during the approximately two hours she was at the park, she observed people sledding down the hill and some came as far as the sidewalk upon which she was standing. Claimant asserts there should have been a fence or some other type of barrier surrounding the sidewalk to protect bystanders from sleds. However, at no time did she apparently feel sufficiently threatened that she took the simple action of moving farther away.

The Court finds that the facts presented in this case are similar to those in Koenig v Town of Huntington (10 AD3d 632, supra) and Cannavale v City of New York (257 AD2d 462, 463) where a spectator watching a semi-professional football game from the sidelines was "trampled by the players". In Cannavale, the Appellate Division, First Department held "[t]he dangers of watching a football game from the sidelines of a field with no protective barriers are inherent in the sport and perfectly obvious', and no dangerous condition over and above' such inherent risk was created by the lack of seating or security personnel (Morgan v State of New York, 90 NY2d 471, 484-485)". Here, the Court finds that by standing on the sidewalk adjacent to the sledding area, claimant assumed the open and obvious risk of being struck by a sled. Claimant must, at some point, be responsible for her own actions and/or inactions.

Claimants failed to establish a triable issue of fact as to whether defendant unreasonably increased the inherent risks of injury. Claimants offered only the affirmation of their counsel and did not provide an affidavit from an expert (see Koenig v Town of Huntington, 10 AD3d 632, supra; see also Honohan v Turrone, 297 AD2d 705, supra) or any other evidence tending to show that Mrs. Gotz's proposed measures were more necessary than her own vigilance. [*4]

Based upon the foregoing, the defendant's motion for summary judgment is granted and the claim is dismissed.

Having granted the State's motion, it is not necessary to address the State's second ground for seeking dismissal. However, I note that unlike the doctrine of assumption of risk which is applicable to spectators, GOL § 9-103 is not (Sena v Town of Greenfield, 91 NY2d 611, 615). Thus, the motion to dismiss on the basis of GOL § 9-103 statutory protection would be denied if reached.

White Plains, New York

April 24, 2006

STEPHEN J. MIGNANO

Judge of the Court of Claims Footnotes

Footnote 1: The claim of Ruben Gotz is derivative in nature. All references to claimant will be to Mrs. Gotz unless otherwise indicated.

Footnote 2: Her husband, two sons, two daughters-in-law and four grandchildren.

Footnote 3: Claimants' apparent position in this regard is that after being a "spectator" for an hour or more, claimant removed herself from the zone of danger by turning her back on the activity area. Claimants cite no case law to sustain this rather remarkable position.