Lewin v United Skates of Am., Inc.

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[*1] Lewin v United Skates of Am., Inc. 2009 NY Slip Op 51627(U) [24 Misc 3d 1226(A)] Decided on July 28, 2009 Supreme Court, Kings County Kramer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 28, 2009
Supreme Court, Kings County

Kahlil Lewin, an infant by his parent and natural guardian of LAKISHA THOMPSON and LAKISHA THOMPSON, Individually, Plaintiffs,

against

United Skates of America, Inc., UNITED SKATES OF AMERICA, INC. d/b/a EMPIRE ROLLER SKATING CENTER and BROOKLYN SKATING, LLC., Defendants.



8546/07



Plaintiff was represented by Gary P. Kauget, PC, 9201 Fourth Ave., Brooklyn, NY 11209. Defendants were represented by Charles J. Siegel, Esq., 40 Wall St., NY, NY 10005.

Herbert Kramer, J.



The infant plaintiff, who was then eight years old , was injured when he skated underneath a board that partially blocked an entrance to the general skating area. The plaintiff had gone under the wood twice before the accident happened. When he got hurt he was going under the wood because he wanted to go around faster and get ahead of someone else. He had seen other kids do it. A skating guard told him not to skate under the board. There were other open entrances to the general skating area.

Defendant moves for summary judgment arguing that the plaintiff, who his mother described as a "good skater," and who was warned not to skate under the board, assumed the risk of this accident.

"In general, a person who is injured while voluntarily participating in a sporting event has no legal recourse if his injuries were caused by an occurrence or condition which was a known, apparent or reasonably foreseeable consequence[ ] of the participation'. Relieving an owner or operator of a sporting venue of liability for inherent risks of engaging in a 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. A premises owner continues to owe a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. Additionally, the application of the assumption of the risk doctrine in assessing the duty of care owed by an owner or operator of a sporting facility requires that the [*2]participant have not only knowledge of the injury-causing defect but also appreciation of the resultant risk, but awareness of 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." Blanco v. Elmont Union Free School District, 179 Misc 2d 918(NY Sup 1999).

By roller skating, the plaintiff consented to those risks commonly associated with roller skating. However, the location of the wooden barricade falls outside the normal risks associated with skating because its placement and its apparent use by other children on the rink could well be found to have presented a near irresistible challenge to young skaters who enjoy showing off their prowess and testing their skills. Indeed, consistent with a landowner's duty to prevent foreseeable injuries . . . the degree of care to be exercised must take into account the known propensity' of children to roam and climb and play.' Notably [w]hat accidents are reasonably foreseeable, and what preventative measures should reasonably be taken, are ordinarily questions of fact'." Dunbar v. NMM Glens Falls Associates, LLC, 263 AD2d 865(3d Dept.1999).

Here it can well be said that questions of fact exist as to whether the defendants fulfilled their duty of care to their young skaters and whether this young plaintiff after himself having previously skated under this bar without incident and having watched others do so as well, so clearly appreciated the risk such that it can be held that he assumed the risk as a matter of law. See e.g., Alessi v. Boy Scouts of America Greater Niagra Frontier Council, Inc., 247 AD2d 824(4th Dept. 1998).

The defendant's motion is denied.

This constitutes the decision and order of the Court.

J.S.C.