Zuzio v Portela
2009 NY Slip Op 50084(U) [22 Misc 3d 1111(A)]
Decided on January 6, 2009
Supreme Court, Nassau County
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This opinion is uncorrected and will not be
published in the printed Official Reports.
Zuzio v Portela
Decided on January 6, 2009
Supreme Court, Nassau County
Laura Zuzio, by her Mother and Natural Guardian, DAWN LODATI and DAWN LODATI, Individually, Plaintiffs,
Marina Portela and WILLIAM PORTELA, Defendants.
TO:Bornstein & Emanuel, PC
Attorneys for Plaintiffs200 Garden City Plaza, Suite 201
Garden City, NY 11530
Desena & Sweeney, LLP
Attorneys for Defendants
1383 Veterans Memorial Highway, Suite 32
Hauppauge, NY 11788
William R. LaMarca, J.
MARINA PORTELA AND WILLIAM PORTELA (hereinafter referred to as the
"PORTELAS"), move for an order pursuant to CPLR Rule 3212, granting them summary
judgment dismissing the action on the ground that no triable issue of fact exists as to any liability
on their part and that plaintiff voluntarily assumed the risk inherent with the use of a trampoline.
Plaintiffs, LAURA ZUZIO (hereinafter referred to as "ZUZIO"), by her mother and natural
guardian, DAWN LODATI, and DAWN LODATI, individually, (hereinafter referred to as
"LODATI"), oppose the motion and claim that an issue of fact exists as to whether the defendant
adequately supervised the infant plaintiff. The motion is determined as follows:
This action arises to recover for alleged personal injuries stemming from a trampoline incident. On May 7, 2006, the infant plaintiff, ZUZIO, then ten (10) years old, was at her friend Nicollette Portela's house, located on 299 North Utica Avenue, Massapequa, New York where the accident occurred. According to ZUZIO's deposition testimony, the night before, the PORTELAS, parents of Nicollette Portela, were hosting a sleep over. The next morning, at about 9:00 A.M., Nicollete asked her mother's permission to use the trampoline before she and her friends went outside to use it. ZUZIO testified that she used the trampoline on five (5) to six (6) prior occasions without incident. She stated that the accident occurred approximately thirty (30) minutes after she started jumping on the trampoline. She testified that she injured herself after she attempted a trick [*2]known as a "donkey kick" and that the trampoline did not cause the accident. She described a "donkey kick" as "jumping on one's knees and then jumping into a handstand" and that she had never done the trick before the date of the incident. According to ZUZIO, neither of the PORTELAS gave instructions to the children with respect to the use of the trampoline. She testified that, on the day of the accident, all the children present, approximately six (6), used the trampoline at the same time and were competing to see who could do the most tricks on the trampoline, including flips, handstands and "donkey kicks". She stated that, during this competition, each of the children would do tricks, one at a time, while everybody else was still on the trampoline watching or running in the background. She testified that she was aware of a warning label posted on the trampoline that displayed the weight capacity and the number of individuals allowed on the trampoline at any given time, but she did not recall what that number was.
Co-plaintiff, LODATI, testified at her deposition that she knew defendant MARINA PORTELA for approximately one (1) year and that she was aware of a trampoline at the PORTELAS' home. She stated that she never had any general concerns about her daughter playing at the PORTELAS' house, but did, in fact, express her concerns to her daughter regarding the use of the trampoline. However, LODATI testified that she never told ZUZIO not to use the trampoline and she never had any prior concerns regarding the supervision by the defendants. According to LODATI's testimony, after the accident, ZUZIO told her mother that the accident happened because ZUZIO attempted a "donkey kick" which forced her to land on her head and flip over.
According to the deposition testimony of defendant MARINA PORTELA, the fifteen (15) foot round trampoline was located on the grass in the backyard, approximately fifteen (15) feet from the kitchen window. She stated that the PORTELAS purchased a surrounding netting, at an additional cost of $150, which rose approximately six (6) feet tall and, which was placed around the trampoline for extra precaution. She stated that she was in the kitchen doing dishes when the accident occurred and that the sink was directly below the kitchen window. She testified that she observed the children jumping, one at a time, and that, prior to observing plaintiff attempt a "donkey kick," she saw another child perform the same trick. According to Mrs. PORTELA, from her observation point, she saw that ZUZIO's arm did not support her weight and that she fell. She stated that upon seeing ZUZIO fall, she yelled out the kitchen window, "Is she okay?" When she didn't get an answer from any of the children she ran out of the dining room and asked ZUZIO directly, "Are you OK?" and found the child with tears in her eyes. Mrs. PORTELA then called 911 and thereafter called LODATI to inform her that her daughter had been hurt on the trampoline.
WILLIAM PORTELA testified at his deposition that, although he was not a witness to the occurrence, he was at home when the accident occurred. He claims that he did, in fact, give instructions and general guidelines to the girls prior to their use of the trampoline. He stated that the children were allowed to do a flip only when an adult was present around the trampoline. He further claims that, on the day of the accident, he had told the children that there was "...no fooling around, no horseplay, no flips and one person jumping at a time."
The action was commenced by filing a Summons and Verified Complaint, dated March 21, 2007. Issue was joined by service of a Verified Answer on April 11, 2007. The [*3]complaint alleges the following three (3) causes of action: personal injuries sustained by ZUZIO due to an unsafe, hazardous, dangerous, defective trap-like condition in the form of a trampoline on the defendant's property; negligent supervision by the defendant parents; and loss of services by LODATI as a result of the injuries sustained by her daughter. A verified Bill of Particulars was served on or about August 14th, 2007 in which ZUZIO claimed the following injuries: hyper-extension of the neck; acute cervical sprain; hemorrhage and contusion of the cervicothoracic spine at levels C7-T1; and loss of sensation/numbness in the lower extremities. It is alleged that, as a result of the subject occurrence and the injuries therefrom, the infant plaintiff missed approximately three (3) to four (4) weeks of school and received home schooling during that period of time (See Bill of Particulars, Exhibit "D" to the moving papers).
In support of the motion for summary judgment, counsel for defendants, submit the deposition transcripts of the PORTELAS and the infant plaintiff. Essentially, they allege that ZUZIO injured herself due to an unsuccessful "donkey kick"; that ZUZIO knew of a warning label and had used this trampoline on several prior occasions; that defendants did not take safety for granted as they installed high netting around the trampoline at an extra cost; that Mrs. PORTELA had the children under constant supervision from a distance of approximately fifteen (15) feet; that Mr. PORTELA had given explicit instructions to the children regarding the use of the trampoline; and that ZUZIO assumed the risk of injury inherent in the use of the trampoline. Movants claim that, since ZUZIO assumed the risk, her attempted trick was the proximate cause of her injuries. Defendants urge there is no material issue of fact requiring a trial and that summary judgment is appropriate.
In opposition to the motion, plaintiffs allege that the defendants' inadequate supervision was
the proximate cause of the infant plaintiff's accident. Essentially, it is plaintiffs' position that
defendants were negligent in permitting six (6) children on the trampoline at the same time and
that by not enforcing the instructions regarding the use of the trampoline, it was foreseeable that
an accident was going t happen. Plaintiffs claim that an issue of fact exists as to whether the
defendants adequately supervised the infant and therefore summary judgment should be denied.
consistently applied the doctrine of assumption of risk in circumstances such as those before the
Court which operates to relieve owners and operators of sporting venues from liability for
inherent risks of engaging in a sport or recreational activity. Morgan v State of New
York, 90 NY2d 471, 685 NE2d 202, 662 NYS2d 421 (C.A. 1997). It is the PORTELAS'
position that ZUZIO voluntarily participated in the use of the trampoline and, therefore, assumed
the risks inherent in jumping and flipping on said equipment. Defendants claim there was an
obvious risk of injury that plaintiff assumed as they were apparent and reasonably foreseeable
consequences of engaging in the activity. Morgan v State of New York, supra .
With respect to the issue of assumption of risk, Turcotte v Fell, 68 NY2d 432, 510 NYS2d 49, 502 NE2d 964 (C.A. 1986), placed professional athletes participating in sporting events into the category of "primary" assumption of risk, which limited defendant's [*4]duty to exercising due care to make the conditions as safe as they appear to be. "If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty". Turcotte v Fell, supra . Relieving an owner or operator of a sporting venue from liability for the inherent risks of engaging in the sport is justified when a consenting participant is aware of the risks, has an appreciation of the nature of the risks and voluntarily assumes the risks. Morgan v State of New York, supra ; see, Maddox v City of New York, 66 NY2d 270, 496 NYS2d 726, 487 NE2d 553 (C.A. 1985).
The Court of Appeals in Morgan v State of New York, supra , and many cases to follow, extended the Turcotte principle to non-professional athletes and held "that, 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 sport generally and flow from such participation... [A]wareness of the risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff". Morgan v State of New York, supra , (citations omitted); Gambel v Town of Hempstead, 281 AD2d 391, 721 NYS2d 385 (2nd Dept. 2001). However, participants were not deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. Morgan v State of New York, supra .
Assumption of the risk has been applied to cases involving the use of a trampoline. In Goldstein v Welter, 303 AD2d 551, 756 NYS2d 465 (2nd Dept., 2003), an infant plaintiff was injured while playing with other children on a trampoline in the defendants' backyard. Second Department held that "the defendants did not demonstrate their prima facie entitlement to judgment as a matter of law, since there were questions of fact as to whether they adequately supervised the infant plaintiff and, if not, whether the inadequate supervision was a proximate cause of the infant plaintiff's injury." In Sing v Persaud, 269 AD2d 381, 702 NYS2d 628 (2nd Dept. 2000), cited in Goldstein, the Court found that the issue of whether an injury -producing act was foreseeable is typically a question for the trier of fact to resolve. In Sing, the defendant testified that she was aware that the older children were running in the living room and might potentially harm each other. The Court held that this created an issue of fact as to whether the injury was foreseeable. Sing v Persaud, supra .
The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923, 501 NE2d 822 [C.A. 1986]). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v Journal-News, 211 AD2d 626, 620 NYS2d 500 [2nd Dept. 1995]). Thus, the burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 [C.A. 1993])
Summary judgment is seldom appropriate in a negligence action (Vanderwater v [*5]Sears, 277 AD2d 1056, 716 NYS2d 495 [4th Dept. 2000]) since the very question of whether or not a defendant's conduct amounts to negligence is a question for the trier of fact in most instances and can rarely be decided as a matter of law (Johannsdottir v Kohn, 90 AD2d 842, 456 NYS2d 86 [2nd Dept. 1982]). Also, the credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected the truthfulness and accuracy of the testimony, whether contradictory or not, are issues for the trier of the facts (Lelekakis v Kamamis, 41 AD3d 662, 839 NYS2d 773 [2nd Dept. 773]; Pedone v B & B Equipment Co., Inc., 239 AD2d 397, 662 NYS2d 766 [2nd Dept. 1997]).
After a careful reading of the submissions herein, it is the judgment of the Court that defendants have not demonstrated their entitlement to judgment as a matter of law and that questions of fact exist which preclude the granting of summary judgment. Giving plaintiff every favorable inference, the Court finds that there is a question of fact as to whether defendants adequately supervised the infant plaintiff and, if not, whether the inadequate supervision was a proximate cause of the infant plaintiff's injury. The record suggests there was as many as six (6) children on the trampoline at any given time, and conflicting testimony about whether the children were instructed with regard to the use and safety of the trampoline prior to the accident. By Mrs. PORTELA's own testimony, she did not tell the girls to stop doing what they were doing on the trampoline while she observed them doing tricks that they were allegedly instructed not to do. Although it appears that ZUZIO voluntary participated in the use of the trampoline, a question remains about whether the defendants adequately supervised the children and if not, whether their actions unreasonably increased the risks of injury to the infant plaintiff. Goldstein v Welter, supra . Accordingly, it is hereby
ORDERED, that defendants motion for summary judgment dismissing the complaint is denied.
All further requested relief not specifically granted is denied.
This constitutes the decision and order of the Court.
Dated: January 6, 2009
William R. LaMarca, J.S.C.