Jones v Hofstra Univ.

[*1] Jones v Hofstra Univ. 2013 NY Slip Op 50785(U) Decided on May 16, 2013 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 16, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570125/13.

Jalila Jones, Plaintiff-Appellant,

against

Hofstra University, Christina Winslow and Edward Winslow, Defendants-Respondents.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered April 27, 2012, which granted defendants' motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Peter H. Moulton, J.), entered April 27, 2012, reversed, with $10 costs, motion denied and complaint reinstated.

Plaintiff, then a freshman majoring in dance at Hofstra University, allegedly sustained injuries while participating in a required dance class, when she fell in attempting a jumping maneuver involving several loosely stacked air mattresses, an activity directly supervised by a substitute instructor. In the ensuing negligence action, defendants demonstrated prima facie entitlement to summary judgment based upon the doctrine of primary assumption of the risk, which provides that 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 or activity generally and flow from such participation (see Morgan v State of New York, 90 NY2d 471, 483-486 [1997]; Turcotte v Fell, 68 NY2d 432, 438 [1986]). However, in opposition, plaintiff raised a triable issue as to the application of the "inherent compulsion" doctrine, which "provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior" (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989]; see Smith v J.H. W. Elementary School, 52 AD3d 684, 685 [2008]; cf. Bukowski v Clarkson Univ., 86 AD3d 736 [2011]). Most prominent among the unresolved issues precluding summary judgment is whether plaintiff's participation in the jumping exercise was mandatory (see Verduce v Board of Higher Educ. in City of NY, 8 NY2d 928 [1960], revg on dissenting opn below 9 AD2d 214 [1959]; Fabricius v County of Broome, 24 AD3d 853 [2005]; cf. Stoughtenger v Hannibal Cent. School Dist., 90 AD3d 1696, 1697 [2011]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 16, 2013