McBride v City of New York

[*1] McBride v City of New York 2007 NY Slip Op 52079(U) [17 Misc 3d 1119(A)] Decided on October 16, 2007 Supreme Court, New York County DeGrasse, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2007
Supreme Court, New York County

Carolyn McBride, Plaintiff,

against

The City of New York and Wollman Rink Operations, Defendants.



102243/05

Leland G. DeGrasse, J.

In this personal injury action, defendants the City of New York and Wollman Rink Operations move, pursuant to CPLR 3212, for summary judgment dismissing the complaint. Plaintiff opposes the motion.

FACTS

Plaintiff commenced the underlying action to recover for injuries she allegedly sustained on December 27, 2003, when she fell while skating at the Wollman Ice Skating Rink which is owned and operated by defendants and located in Central Park. The complaint alleges that the incident occurred due to defendants' negligence in allowing the rink to "become and remain overcrowded," and in failing to maintain the ice "in a safe, proper and suitable condition."

At a hearing held on July 22, 2004, pursuant to General Municipal Law 50-h, plaintiff, who was 34 years old at the time of the accident, testified as follows: On December 27, 2003, plaintiff and her 10 year old niece arrived at the skating rink around 10 a.m. The weather was considerably warm that day. Plaintiff believed that the accident happened sometime between 10:30 a.m. and 11:30 a.m. Prior to the accident, plaintiff had been skating for approximately 30 minutes. According to plaintiff, "everyone was skating in a circle, so [she] was skating with what seemed to be the rule." As plaintiff skated, the upper left side of her body came into contact with an unidentified skater causing her to fall backwards. Plaintiff stated that while "[she] won't say that is what caused [her] to fall[,] it didn't help the situation." Plaintiff claimed that the slushy ice on the rink "played a large role in [her] inability at that time to stabilize [herself]." A few seconds before plaintiff fell, she had noticed that the ice was "really slushy." However, it was not until after the accident that plaintiff noticed that defendants kept letting more and more people enter the rink which caused it to become "incredibly crowded."

Further, at her deposition taken on May 19, 2006, plaintiff testified as follows: Plaintiff and her niece arrived at the skating rink shortly before 10 a.m., waited on line for approximately [*2]10 minutes to rent skates, and shortly thereafter entered the rink. Plaintiff skated for approximately 30 minutes, stopping to take "some brakes" at the side of the rink. At one point, plaintiff left the rink for a short rest. A few minutes after returning to the rink, an unknown skater "bumped into [plaintiff] and then [she] was trying to stabilize [herself] from the bump, but because the ice was slushy [plaintiff] slipped." Plaintiff stated that "a minute or so" before her fall, she had noticed that "the ice was slushy ice." Plaintiff claimed that she fell due to "the quality of the ice at the time, and how slushy it was." Plaintiff also claimed that "when [she] first started skating, there was a reasonable amount of people on the ice," but after a few minutes of skating, defendants started letting more people into the rink, "to the point where it felt slightly overwhelming." Plaintiff "didn't have time to complain" to anyone about the crowded rink or the condition of the ice.

DISCUSSION

Summary Judgment Standard

The law is well-settled that summary judgment is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be presented at trial (see Andre v Pomeroy, 35 NY2d 361 [1974]; Benincasa v Garrubbo, 141 AD2d 636 [1988]). "When reviewing a motion for summary judgment the focus of the court's concern is issue finding, not issue determination, and the affidavits should be scrutinized carefully in the light most favorable to the party opposing the motion" (Robinson v Strong Mem. Hosp., 98 AD2d 976, 977 [1983], quoting Goldstein v County of Monroe, 77 AD2d 232, 236 [1980]). The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957], rearg denied 3 NY2d 941 [1957]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad, 64 NY2d at 853). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493, 494 [1989]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Notwithstanding the general proposition that the ultimate resolution of negligence actions is best left to the trier of fact, mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966 [1988]). Thus, a party opposing a summary judgment motion must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist (Kornfeld v NRX Tech., Inc., 93 AD2d 772 [1983]), affd 62 NY2d 686 [1984]).

In moving for summary judgment defendants contend that as a voluntary participant in the recreational activity of ice skating, plaintiff assumed the risks that are inherent in said activity. Defendants further contend that plaintiff has failed to establish that defendants had notice of the alleged dangerous condition of the ice.

In opposition, plaintiff argues that defendants are liable for negligence based on their failure "to exercise due care to clean, repair or resurface the ice," thereby creating "dangerous conditions in the ice surface," of which defendants had actual or constructive notice. In [*3]particular, plaintiff asserts that "the unseasonably warm temperatures, [and] the excessively overcrowded numbers of skaters on the ice" created a dangerous, defective and hazardous condition which defendants allowed to exist for an unreasonable length of time.

In support of plaintiff's contentions that the unseasonably warm weather caused the ice on the rink to become slushy, plaintiff submits a computer printout of a weather report from the website of NY Newsday. Plaintiff claims that said report indicates that "the National Weather Service reported it to be approximately 52 degrees at the time of the accident." Plaintiff further claims that said temperature was "drastically above the average and a likely contributing factor to the large crowds and dangerous ice conditions." The court notes that a review of plaintiff's submission indicates that the average "mean temperature" on the date of the accident was 45 degrees, with the minimum temperature at 38 degrees and the maximum temperature at 52 degrees.

In reply, defendants submit a certified weather report from the U.S. Department of Commerce, National Oceanic & Atmospheric Administrations Data Center ("NOAA") and a copy of a NOAA conversion chart which establishes that on the date of the accident the temperature in Central Park was 44.6 degrees at 10:51 a.m. Defendants further argue that "plaintiff has failed to proffer any evidence in admissible form, expert or otherwise, that said temperatures of 44.6 degrees' was drastically' above average as contended, and would cause the ice on the subject refrigerated ice rink to turn to slush."

To recover in a negligence action plaintiff must establish that defendants owed her a duty to use reasonable care, and that they breached that duty (Akins v Glens Falls City School Dist., 53 NY2d 325 [1981]). 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 [1997]). "A participant in a recreational event such as ice skating is presumed to have assumed the risk of potentially injury-causing conditions which are known, apparent or reasonably foreseeable" (Saravia v Makkos of Brooklyn, 264 AD2d 576, 577 [1999]). While recovery may still be had for damages resulting from exposure to "unreasonably increased risk" (Morgan, 90 NY2d at 485; Simoneau v State of New York, 248 AD2d 865, 866 [1998]), the mere fact that a defendant could feasibly have provided safer conditions is not dispositive where the risk is open and obvious to the participant taking into consideration the individual's level of experience and expertise (Morgan 90 NY2d at 485 - 486; Simoneau 248 AD2d at 867 - 868; Maddox v City of New York, 66 NY2d 270, 278 [1985]). Moreover, in assessing the application of the doctrine of assumption of risk, it is not necessary that the injured plaintiff may have foreseen the exact manner in which the injury occurred "so long as he or she is aware of the potential for injury of the mechanism from which the injury results" (Maddox, 66 NY2d at 278). However, the operator of a facility in which sporting activities take place owes a duty of care to such participants not to enhance the inherent risks (Hornstein v State of New York, 30 AD2d 1012 [1968]). The standard of care required of one who operates such a facility is to make the facility as safe as it appears to be to its patrons (Turcotte v Fell, 68 NY2d 432, 439 [1986]).

In opposition to the motion, plaintiff submits her own affidavit in which she asserts that [*4]although she lost her balance when an unknown skater bumped into her, that was not the cause of her fall. Rather, plaintiff claims that she was caused to fall when her "skate blades lost regular or normal contact with the ice in the slush," thus making it "impossible to regain [her] balance." There can be more than one proximate cause of an injury (Mohammed v City of New York, 205 AD2d 415, 416 [1994]; Galioto v Lakeside Hosp., 123 AD2d 421, 422 [1986]). Assuming that the ice constituted an unsafe condition, plaintiff testified at her 50-h hearing and deposition that she skated for approximately 30 minutes, taking several short breaks during that time, before she fell. Plaintiff further testified that she did not notice that the ice was slushy until a few seconds before her fall. Plaintiff also testified that she did not complain to anyone about the condition of the ice and the crowded rink because there was not enough time between noticing said conditions and her fall. To the extent that the condition of the ice may have proximately contributed to plaintiff's injuries, plaintiff does not present any evidence to support this contention. Plaintiff did not complain to anyone about the alleged poor condition of the ice, and in fact skated on it for nearly 30 minutes before she fell.

Further, in addressing the potential hazard of softening ice, defendants submit the deposition testimony of their general manager, Dale Klied. At his deposition, Klied stated that he is responsible for the day-to-day operations of the outdoor ice skating facility which measures 33,000 square feet. On the date of the accident, the rink opened up at 10 a.m. and Klied was the only general manager on duty that day. Klied also stated that defendants resurface the ice on an "as per needed" basis, depending on the weather conditions and the amount of skaters on the ice. According to Klied, "[i]f it's not cold, then the ice is going to get chewed up a lot faster, which means you have to cut the ice more often." This could be as much as "every 45 minutes." Usually on holidays like the week of plaintiff's accident, defendants "increase the ice cuts." This is done through the use of a Zamboni machine which "shaves the old ice off, [and] lays water down which freezes," filling in "the cracks and the divots" to make a clean sheet of ice. Klied stated that there is no rule limiting the amount of skaters on the ice. Further, during his five-year tenure at the skating rink, Klied has never had to limit the number of skaters on the ice. With respect to safety, Klied stated that skate guards are employed to oversee the skating sessions. The guards make sure that the skaters are complying with the basic rules, such as skating in the same direction. In addition, risk management signs are posted and safety announcements are played over the public announcement system on a regular basis or as needed.

Plaintiff has failed to establish any negligent act or inaction on defendants' part proximately causing the accident and plaintiff's injuries. Plaintiff's testimony at her 50-h hearing and deposition clearly establish that she assumed the risks inherent in ice skating when she voluntarily engaged in the sport. Plaintiff asserts in her affidavit, for the first time in this case, that "[t]he clubhouse was so crowded it took [her] about 30 minutes before [she] could put on [her] rental skates and get onto the ice." She also asserts that "[d]uring the time [she] was ice skating, the ice surface was becoming increasingly slushy." Plaintiff further claims that as time passed, the slush was becoming increasingly thick and unmanageable, and no rink attendants or employees were limiting the swarms of people being let onto the ice as the rink became increasingly and excessively crowded, and the slush was becoming increasingly thick, unmanageable, and dangerous." Additionally, plaintiff asserts that "[she] did notice that the ice was becoming increasingly slushy, [and] it was not until the moment [she] attempted to maintain [*5][her] balance [that she] realize[d] how slushy and dangerous the ice had become."

Plaintiff's claims are belied by her 50-h hearing and deposition testimony. When asked at her 50-h hearing if she noticed the slushy ice before she fell, plaintiff merely stated "I believe I noticed it before I fell," and further stated "I would say a few seconds before." Further, at her deposition, plaintiff responded to the same question by stating that she noticed that the ice was slushy "maybe a minute or so" before she fell. She further stated "I think that I wasn't paying attention to that. I was what I'm saying is, I was happy, I was just focusing on the day and the time, so I wasn't paying attention to the specific things." Additionally, when asked at her 50-h hearing if she knew approximately how many people were on the rink at the time of the accident, plaintiff stated [t]here was more than I had seen at other rinks and I didn't notice until unfortunately after the accident." Further, when asked at her deposition if she thought the rink was crowded, plaintiff stated that she noticed the crowd "a few minutes after getting onto the ice, because they would let groups of people in." Finally, plaintiff stated that she did not complain to anyone about the condition of the ice or the crowded rink because "[she] didn't have time to do so."

Assuming plaintiff's present version of the facts to be true, and assuming arguendo that the ice and the overcrowded rink constituted an unsafe condition, plaintiff's own statements reveal that she had actual knowledge of the condition of the ice and the overcrowded rink which she alleges to have been the cause of her accident. The assumption of risk doctrine applies not only to any facet inherent in the sporting activity itself but also " to any open and obvious condition of the place where it is carried on'" (Maddox, 66 NY2d at 277, quoting Diderou v Pinecrest Dunes, 34 AD2d 672, 673 [1970]). Since plaintiff admits that during the time she was skating, she noticed that "the ice surface was becoming increasingly slushy," and that the rink had become "increasingly and excessively crowded," it would appear that any risk or danger which may have been posed by the condition of the ice and the crowded rink were known and apparent and reasonably foreseeable to plaintiff prior to her accident. Ice skating is a dangerous sport with commonly appreciated risks, such as the risk of losing one's balance when skating on ice, which should be apparent to a person of reasonable age (Morgan, 90 NY2d at 488). Having elected to continue skating despite the open and obvious conditions of the ice skating rink, plaintiff must be deemed to have assumed the risk created by those conditions (Clements v Skate Realty, 277 AD2d 614, 615 [2000]; Saravia, 264 AD2d at 577).

Although plaintiff states in her affidavit that "[a]fter her fall, while waiting for an ambulance, several rink employees commented that the ice had too many cuts," a mere general awareness of some dangerous condition is legally insufficient to establish constructive notice" (Segretti v Shorenstein Co., East L.P., 256 AD2d 234, 235 [1998]; see Gordon v Am. Museum of Natural History, , 67 NY2d 836, 838 [1986]). The record is devoid of any evidence that the slush in which plaintiff allegedly slipped existed for a sufficient length of time so that knowledge could be imputed to defendants. Nor does the record establish that defendants created the hazardous condition or had actual or constructive notice of any defect in the ice and failed to correct it (see Engstrom v City of New York, 270 AD2d 35 [2000]).

Defendants have met their burden of establishing through admissible evidence that plaintiff, as a voluntary participant skating at defendants' ice skating rink, assumed the risk of known and usual dangers inherent in ice skating (cf. Baker v Topping, 15 AD2d 193 [1961], [*6]appeal denied, 11 NY2d 644 [1962]). Further, even assuming, arguendo, that plaintiff did not assume the risk of her injury, defendants have established as a matter of law that they lacked actual or constructive notice of the alleged ice condition. In opposition, plaintiff has failed to submit evidence sufficient to raise an issue of fact as to whether defendants created a dangerous condition over and above the usual dangers inherent in the sport of ice skating (see Bennett v Kissing Bridge Corp., 17 AD3d 990, 991, affd 5 NY3d 812 [2005]).

CONCLUSION

Based on the foregoing, defendants' motion is granted. The Clerk shall enter judgment dismissing the complaint.

This constitutes the decision and order of the court.

DATED:

J.S.C.