Ditieri v Staten Is. Skating Pavilion, Inc.
Annotate this CaseDecided on May 29, 2007
Supreme Court, Richmond County
Debra Ditieri, Plaintiff,
against
Staten Island Skating Pavilion, Inc., Defendant.
102005/05
Robert J. Gigante, J.
Upon the forgoing papers, defendant's motion for summary judgment dismissing the complaint is granted.
This is an action to recover for personal injuries allegedly sustained by plaintiff on April 27, 2005, when she fell after striking a "rut" in the ice while skating at defendant's ice skating facility located at 3080 Arthur Kill Road in Staten Island, New York.
In moving for summary judgment, defendant Staten Island Skating Pavilion, Inc. (hereinafter "SISP") maintains that, as a matter of law, one of the ordinary risks of ice skating includes irregular skating surfaces and the existence of "ruts". Thus, SISP argues that plaintiff, an experienced ice-skater, must be deemed to have assumed a known and obvious risk inherent in that activity. In the alternative, defendant maintains that plaintiff cannot establish the breach of any duty of care. In support of this argument, defendant submits the affidavit of its vice president, Sal Tirro, who attests on the basis of defendant's records that the surface of the ice skating rink was "regularly and periodically maintained, resurfaced and inspected by SISP's employees" on the date of the accident. In fact, a copy of defendant's "Daily Olympia Report" (i.e., the ice resurfacing report) annexed to Mr. Tirro's affidavit indicates that the ice was resurfaced at 12:00 p.m. on the day of the accident. Plaintiff's accident occurred at approximately 2:15 p.m. In addition, Mr. Tirro attests that at least one skate guard was present on the ice at all times on April 27, 2005 to observe, monitor and assist the patrons.
Finally, defendant claims that neither the alleged lack of supervision nor the purported overcrowding served to increase plaintiff's risk over and above the usual dangers inherent in the sport of ice skating. Also, since the record is clear that plaintiff was injured while skating backwards with her arms behind her back, defendant claims that the sole proximate cause of the accident was plaintiff's own conduct.
In opposing the motion, plaintiff maintains that the doctrine of assumption of risk does not apply to hazardous conditions "over and above" the usual dangers that are [*2]inherent in a sport, and which expose a participant to an unreasonably increased risk. According to plaintiff's deposition testimony, she spent the majority of her time at defendant's skating rink "trying to get the ice fixed" and "[p]icking up children... [that] were falling everywhere, like dominoes." She testified that "the entire...back third of the...[rink was] all rutted, [with] discolored holes and hills." She described the "ruts" as "deep, deep gauges", "bumps like waves" and "hills with holes" that were far more hazardous than the typical "light ruts from the blades" or "cuts in the ice" that would normally exist. She further testified that despite her numerous complaints to defendant's staff and the assurance of the "gentleman in the booth" that he would check the skating surface, no action was taken to resurface the ice. According to plaintiff, these conditions were only aggravated by the alleged absence of skating guards or other employees supervising, observing or inspecting the rink. Finally, plaintiff testified that she (1) purchased thick woolen hats from the skate shop for herself and her daughters in case they fell and "hit their heads again," and (2) made several unsuccessful attempts to have her rental skates sharpened because the "ice was too sticky."
It is well established that the application of the doctrine of assumption of risk "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" of a sporting activity (Morgan v State of New York, 90 NY2d 471, 484). "Awareness of risk, however, is not to be determined in a vacuum" (Guzman v Iceland, Inc., 18 AD3d 704, 705). "Rather, it is to be assessed against the background of the skill and experience of a particular plaintiff" (id.).
Consonant with these principles, it is the opinion of this Court that defendant has met its burden of establishing, as a matter of law, that plaintiff's claims are barred by the doctrine of assumption of risk. Plaintiff was, by her own admission, an experienced ice-skater, who continued to skate notwithstanding her actual knowledge of the alleged defects (see Stanger v M & T Pretzel, 5 AD3d 471; Gillett v County of Westchester, 274 AD2d 547, 548), which she essentially characterized as open and obvious (see Brugnatelli v County of Westchester, 277 AD2d 191). She was therefore a consenting adult participant who voluntarily assumed the risks associated with the alleged conditions (see Stanger v M & T Pretzel, 5 AD3d at 471; Brugnatelli v County of Westchester, 277 AD2d at 191).
Accordingly, it is
ORDERED, that defendant's motion for summary judgment is granted, and the complaint is hereby dismissed; and it is further
ORDERED, that the Clerk enter judgment accordingly.
ENTER,
Dated: May 29, 2007S/_______________________
Robert J. Gigante, J.S.C.
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