Fiden v Williamsville Cent. Sch. Dist.

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Fiden v Williamsville Cent. Sch. Dist. 2016 NY Slip Op 32811(U) November 22, 2016 Supreme Court, Erie County Docket Number: 807904/2014 Judge: E. Jeannette Ogden Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: ERIE COUNTY CLERK 02/24/2017 11:50 AM 1] INDEX NO. 807904/2014 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 02/24/2017 At a Special Term of the Supreme Court of the State of New York, held in and for the County of Erie on the 22°• day of November, 2016. STATE OF NEW YORK COUNTY OF ERIE: SUPREME COURT ALEXAFIDEN Plaintiff ORDER v. Index No.: 807904/2014 WILLIAMSVILLE CENTRAL SCHOOL DISTRICT and WILLIAMSVILLE SOUTH HIGH SCHOOL Defendants APPEARANCES: Lipsitz Green Scime Cambria LLP, by Max Humann, Esq. for the Plaintiff, Alexa Fiden Hurwitz & Fine, P.C. by Jody E. Briandi, Esq. and Tessa R. Scott, Esq., for Defendants, Williamsville Central School District and Williamsville South High School PLEADINGS REVIEWED: Notice of Motion for Summary Judgment, Attorney Affidavit in Support of Motion for Summary Judgment of Jody E. Briandi, Esq. with Exhibits, and Memorandum of Law in Support of Defendant's Motion for Summary Judgment. Reply Affirmation of Max Humann, Esq. with Exhibit Attorney's Reply Affidavit in Further Support of Defendant's Motion for Summary Judgment of Tessa R. Scott, Esq. 1 of 4 [*FILED: ERIE COUNTY CLERK 02/24/2017 11:50 AM 2] NYSCEF DOC. NO. 28 INDEX NO. 807904/2014 RECEIVED NYSCEF: 02/24/2017 Defendants, Williamsville Central School District and Williamsville South High School, move pursuant to CPLR §3212, for an Order granting summary judgment dismissing Plaintiff's complaint for damages for personal injuries she sustained to her left arm when she slipped and fell into another student allegedly as a result of a dangerous condition, to wit: a broken stage set on Defendants' property, during her performance in a school play. Defendants' maintain that Plaintiff assumed the risks associated with her voluntary participation as a cast member in the school play where she attended school, including the risks of the stage area; that there is no evidence a defective condition existed or that said condition was the proximate cause of Plaintiffs fall; and alternatively, that Defendants did not create, nor have prior actual or constructive notice of the alleged dangerous condition that caused Plaintiffs injury. Therefore, Plaintiffs complaint must be dismissed. Plaintiff opposed Defendants' motion alleging that questions of fact exist regarding Defendant's negligence as a result of the size of the stage being decreased due to the incorrect placement of a piece of the stage set which caused Plaintiff to collide with another student and whether Defendants' were negligent for failing to instruct the students on what to do if a stage prop was in the wrong place and failing to ensure that all of the student performers were in the right place. Plaintiff also contends that whether these factual questions impact the normal and ordinary risk associated with dancing is a further question of fact which precludes summary judgment. Oral argument of the motions was heard by this Court on November 22, 2016 and thereafter decision was reserved. 2 2 of 4 [*FILED: ERIE COUNTY CLERK 02/24/2017 11:50 AM 3] NYSCEF DOC. NO. 28 INDEX NO. 807904/2014 RECEIVED NYSCEF: 02/24/2017 NOW, upon review of the aforementioned pleadings, consideration of the oral arguments of Counsel and due deliberation having been had thereon, it is hereby DETERMINED that Defendants failed to establish, prima facie, that the doctrine of assumption of risk bars the Plaintiffs recovery. Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity generally and flow from such participation. (Brown v Roosevelt Union Free School District, 130 A.D.3d 852, 853, 14 N.Y.S.3d 140, quoting Morgan v State ofNew York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202) This would include risks associated with the surface of the stage and any open and obvious condition on it. Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks. (Id) The evidence established herein is that Plaintiff fell during the opening night of the performance. She was on stage with approximately 20 girls (Defendants' Exhibit J, pg. 54, lines 12-23). The set in question broke during the prior scene and the crew members were unable to freely maneuver the set as a result of the damage that occurred in the previous scene, so they just placed it in the incorrect spot (Defendant's Exhibit J, page 70). The placement of the damaged set caused Plaintiff and the other girls to be "smushed together" and decreased the amount of space that had been between them during rehearsals. When the girls broke up into separate lines, they were closer together because they had to accommodate for the placement of the broken set. (Defendants' Exhibit J, page 68). Plaintiff was injured when she collided with another cast member and fell. 3 3 of 4 [*FILED: ERIE COUNTY CLERK 02/24/2017 11:50 AM 4] NYSCEF DOC. NO. 28 INDEX NO. 807904/2014 RECEIVED NYSCEF: 02/24/2017 The musical director and choreographer acknowledged that if the spacing during the performance was different than it was during the rehearsals, the performers would possibly collide with each other (Defendant' s Exhibit J, page 79) The testimony as to the reduced area of space available for the performers to dance due to the placement of the set in the incorrect spot creates a question of fact as to whether the incorrect placement unreasonably increased the inherent risks of the dance performance. In addition, Defendants have failed to establish, prima facie, that they did not create or have actual or constructive notice of the alleged incorrect placement of set. In light of the Defendants' failure to establish their prima facie entitlement to judgment as a matter of law, it is ORDERED that Defendants motion is DENIED. ENTER: GRANTED FEB 2 4 2017 BY c~ a-U Q o./\'0 '-f/\.qi k COLLEEN FREIBEIT COURT CLERK 4 4 of 4 &c

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