Greiber v National Coll. Athletic Assn.

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Greiber v National Coll. Athletic Assn. 2021 NY Slip Op 33311(U) November 29, 2021 Supreme Court, Nassau County Docket Number: Index No. 600400/17 Judge: Robert A. McDonald 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. INDEX INDEX NO. NO. 600400/2017 600400/2017 FILED: NASSAU COUNTY CLERK 12/03/2021 11:16 AM NYSCEF DOC. DOC. NO. NO. 580 RECEIVED NYSCEF: NYSCEF: 12/01/2021 SHORT FORM ORDER SUPREME COURT OF THE STATE OFNEW YORK COUNTY OF NASSAU Present: HON. ROBERTA. MCDONALD JUSTICE ------- . ------ . ----------. ----- .. - .----.. ---- . ---. ---------------x TRIA.L/IAS, PART 15 NASSAU COUNTY SAMANTHA GREIBER, Index No. 600400/17 Motion Seq.Nos. 021 ·& 022 Submission Date: 8/5/21 Plaintiff, - against NATIONAL COLLECHATE ATHLETIC ASSOCIATION, HOFSTRA UNIVERSITY and SHANNON SMITH, Individually and in her official capacity as Head Coach of Hofstra University Women's Lacrosse, Defendants. ·------ ·----------· -------------·· -· --------· --------. --- . ----- :--·X HOFSTRA UNIVERSITY and SHANNON SMITH, Individually, and in her ·official capacity as Head Coach of Hofstra University Women's Lacrosse, Third-Party Plaintiffs, - against PROHEALTH CARE ASSOCIATES, LLP and PHYSICIANS 1-X, Third-Party Defendants. -----------: .----------------- .--------. -. -----------. ----------- .. x: The following papers·read ort this motion: NYSCEF Doc. Nos: Notiqe of Motion (Seq. No, 21)...... ,.. ;....... ;... , Affirmation in: Support. ............................... .. 1. [* 1] 1 of 7 418 419 FILED: NASSAU COUNTY CLERK 12/03/2021 11:16 AM NYSCEF DOC. DOC. NO. NO. 580 INDEX INDEX NO. NO. 600400/2017 600400/2017 RECEIVED NYSCEF: NYSCEF: 12/01/2021 Memorandum of Law in Support .. ;., ............ . 420 ·s· upport::tng . E.. x·h·b· 1 ·1ts, .... ·......................... ; ....... ;.. ·. 421-458 Memorandum of Law in Opposition............. . 538 .. E I its ...... ,............................... . ·0 ppos1tion · x·h·b· Reply Affirmation...... ,...............•.................... Notice of Motion (Seq. No. 22}... ,................ . Memorandum of Lawin Support ........ ,.. ,..... .. Affidavits in Support ................... ,, ................ . Supporting Exhibits .. ,., ...... ,........ ,., ........ ,,, .. ,.• Affirmation in Opposition......... ,................... . Memorandum of Law in Opposition... ,........ ,. OppositionExhibits .. ;.............. "· .... ,............. . Reply Memorandum of Law ......................... . Reply Affirmation............ ,........... ;..... ,.......... . Reply Exhibits ............. ;..... ,.......................... .. 539- 553 576 459 460 461;528 462-527 554 555 556- 560 561 562 563- 574 .Relief Requested Motion by the defendants, HofstraUnivetsity(hereinafter ''Hofstra").and Shannon Smith, for an order pursuant to CPLR 3211 and 3212, dismissing the plaintiffs complaint ag<linst them (Seq. No. 21). Motion by the defendant, National Collegiate Athletic Association (hereinafter "NCAA"), for an order pursuant to CPLR 3212 granting summary judgment in its favor. The plaintiff submits opposition to each ofthe·motions; The movants submit reply, Backgrourtd The plaintiff initiated the instant action to recover for personal injuries from multiple concussions sustained while participating in women's lacrosse practice drills as a member of Hofstra'scollegiate tea:nL The plaintiffs first concussion occurred during a shooting drill on March 18, 2013, when a ball whichwas shot by another player and had missed the goal ricocheted off of nearby bleachers, striking the plaintiff in the back ofthe head. The plaintiff was removed from play, examined by Athletic Trainer Robert DiMonda, and referred to team physic.ians. The plaintiff was ultimately cleared to return to play after approximately two months, in May of 2013. ·The plaintiffs second concussion occurred during a ''mimic drill" on January 21, 2014 1 when she slipped and collided heads with another player. The plaintiffwas again removed frompractice., examined by Mr. DiI'vfonda, and referred to team physicians, The plaintiff was not cleared to return to team activity following her second concussion. The plaintiffa.Heges, intrii'r alia, that Hof$tta and Head Coach Shanrion Smith (here1naftet ''Coach Smith'') failed to adequately supervise:, regulate and minimize the risk of i11jury to the plaintiff, The plairitiff claims th~t the defendants failed to warn her of the risk of head injuries that ·could resultfroni..concussions and takes issue with Coach Smith's experience, the.safety ofthe. drills 2 [* 2] 2 of 7 FILED: NASSAU COUNTY CLERK 12/03/2021 11:16 AM NYSCEF DOC. DOC. NO. NO. 580 INDEX INDEX NO. NO. 600400/2017 600400/2017 RECEIVED NYSCEF: NYSCEF: 12/01/2021 which resulted in her injuries, and the .:1.dequacy of the concussion protocols. With regard to the NCAA;the plaintiff claims thatit breached a duty of care by failingto provide proper information and by prohibiting protective headgear that allegedly would have prevented the plaintiffsinjuries. Applicable Law Itis well established thatthe proponentofa motion for summary j udgtnent must demonstrate entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact(See; Alvarez v; Prospect Hosp., 68 NY2d 320 [1986]; see also, Wine grad v; New York Univ. Med. Ctr., 64 NY2d 851 [J 985]; see also, Zuckerman v. City of New York, 49 NY2d 557 [1980]). The evidence will be construed ih a light most favorable to the one moved against (See, Weiss v. Garfield, 21 AD2d 156.[3d Dept 1964]). Once themovant basdemonstratedaprimafacie showing of entitlement to judgment, the burden shifts to the partyopposingthe rriotioh to produce evidentiaty proof in admissible form sufficient to establish the existence of material issues of fact which require atrial.pf the action (See, Zuckerman, supra). The court's function on this motion for summaryjudgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 165 NYS2d 498 [1957]). Since suinmaty judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence ofa triable issue (Rotuba Extruders v. Ceppos, 413 NYS2d 141 [1978]). Thus, when the existence ofan issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson,200NYS2d 627 [1960]} The role ofthe court isto determine ifbonafide issues of fact exist, and not to resolve issues of credibility (Gaither v: Saga Corp., 20JAD2d239 [2d Dept 1994]; Black v. Chittenden, 69 NY2d 665 [1986]). Evidenc,e must be viewed in the light most fav9rable to the,nonrnovirtg party (Gonzalezv; Metropolitan Life Insurance Company, 269 AD2d 495 [2dDept2000]). Thenonrnovingparty's evidence must be accepted as true and the ri.onmoving party is entitled to every favorable inference which can reasonably be drawn from the evidence (Wongv. Tang; 2 AD3d 840 [2dDept 2003]; Farrukhv. Board ofEducation ofthe City ofNew York, 227 AD2d 440 [2d Dept 1996]). "Underthe doctrine of primary assumption oftisk, '[i]ftherisks are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be"" (Calderone v .Molloy College, l 77AD3d 692 [2d Dept2019]; quoting Brown v. City o/New York, 69 AD3d893 [2d Dept 2010]). "This principle extends to those risks associated with the construction of the playing fo:lcl 1:U1d any open and obvious conditiQn thereon" (Brown1 sup,:cz, citing Ziegelnzeyer v. United States Olympic Comm., 1 NY3d 893 [2006]). However, participants are notdeenied fo have assumed risks that are concealed or unreasonablyihcreasecl 0:ver and above the us.rial dangers that are inherent in the sport (Cruz v. City of New York,. 2021 NY Slip Op 0465 8 [2d Dept. 2021]; see also; Benitez v~ New York City Bd. of$due., 73 NY2d.650 [1989]). · [* 3] 3 of 7 FILED: NASSAU COUNTY CLERK 12/03/2021 11:16 AM NYSCEF DOC. DOC. NO. NO. 580 INDEX INDEX NO. NO. 600400/2017 600400/2017 RECEIVED NYSCEF: NYSCEF: 12/01/2021 Discussion In support of their motion, Hofstra a,nd Coach Smith submit, inter alia, the pleadings, the parties' deposition transcripts, a certified weather reportfot January 21, 2014, and the· affidavits of Dr; Shawn Arent, Andrew Smith, and Jennifer Kent Hofstra and Coach· Smith contend the statute of limitations bars any claims stemming from the plaintiffs first concussion, which occurred more than three years prior to the instant action being commenced. These defendants add that the plaintiff voluntarily assumed the risk of injury that comes with playing women's lacrosse, was repeatedly provided with educational-materials and admits to executing multiple informed consent forms throughout her years participating with the team. Team meetings were held in which concussion risks were discussed and a concussion fact sheet was posted in the team. locker room. In any event, the defendants argue that they provided safe playing conditions for all players and exercised reasonable care with regard to concussion protocols. · Dr. Arent is a Professor and Chair of the Department of Exercise Science at the Arnold School of Public Health at the University of South Carolina. Dr. Arent describes his extensive experience in concussion research and familiarity With the resulting protocols and rehabilitation of NCAA student-athletes, as well as his :review of the documents related to this action and the plaintiffs. injuries. Dr.Arent opines thatHofstra and its staff, including Coach Smith, were properly trained and experienced in preventing concussions and had adequate protocols and policiesin place that put player safety .first Dt. Arent further opines that Hofstra properly relied upon contracted team physicians to ascertain injmiesto their players. Dr. Arent opines that Coach Smith and Hofstra's athletic trainers were appropriately experienced and trained with respectto concussions and provided players with adequate equipment considering the information available and the fact that NCAA did not allow headgear at the time. Dr. Arent adds that Coach Smith and Hofstra personnel acted appropriatelygiventheirrespectiveroles, properly supervising teamw;tivitiesin light ofthe players' advanced experience and properly deferring to and relying on medical experts with regard to the plaintiff's injuries. Dr. Arent further opines that the drills performed which resultedinthe plaintiff's injuries were common in the sport and safe to perfonn in rainy conditions as they are meant to prepare players for game situations. Specifically, Dr. Arent opines that following both of the plaintiff's injuries,Athletic Trainer Robert DiMonda acted properly by immediately removing the plaintiff fromparticipation, examining her for symptoms,. and contacting the team physician for further evaluation. Dr, Arent opinesthat Hofstra andits contracted physicians properlyimplementedamedically sound concussion protocol in accordance with established guidelines,takinga conservatiye approach in managing the plaintiffs injuries .. Dr. Arent notes that .the pl~intiff was not c~eared to .return to play until she passed niedical exams and reported herself to be symptom .free; Dr~ Arent additionally notes that the plaintiff did not actually participate for Hofstra' s team agciin untilseveral additional months later.in the fall of 2013, yet chose to particip~te with ano~ertc:::am independently of Hofstra during the summer of 2013, 4 [* 4] 4 of 7 FILED: NASSAU COUNTY CLERK 12/03/2021 11:16 AM INDEX 600400/2017 NO. 600400/2017 INDEX NO. 12/01/2021 RECEIVED NYSCEF: NYSCEF: 12/01/2021 580 NYSCEF DOC. NO. 580 DOC. NO. Mr. Smith is Directdr of Sports Medicine atCanisius College. Mr. Smith supervises, hires, schedules, mentors, and evaluates athletic trainers and team physicians and he serves as a liaison for tnedical needs and follow,;up in the medical community. Mr; Smith describes his experience and familiarity with athletic training andNCAA concussion protocols, as well as documents related the instant action and the plaintiff's injuries. Uponhjs review, Mr. Smith opines that Hofstra and its persoilllel properly implemented a thorough concussion management plan by following Prohealth Care Associates, LLP's concussion protocol which placed player safety first. Mr. Smith further opines that Hofstra and its staff responded promptly and properly implemented this protocol. Mr. Smith agrees with Dr. Arent thatHofstra' s contracted team physicianstooka conservative approach in holding the plaintiff out of participation for approximately two months. ML Smith additionally opines that the plaintiff was provided safe and adequate equipmentand thatthe plaintiff was made aware ofthe risks as demonstrated by the factthat she executed informed consent forms. Coach Kent is the AssistantCoach fortheBoston College Women's Lacrosse Team. Coach Kent played women's lacrosse for ten years and com;hed for over thirty years. Coach Kent opines that the -shooting drills in which plaintiff sustained her concussions were basic and common drills used with women's lacrosse players at varying levels. Coach Kent adds that it is common for missed shots to go wicle of the net onicochet offthe goal post or other objects in the area.; and that players assume risks such as being struck by a ball or slipping and colliding with another player. Coach Kent concludes that Hofstra and Coach Smith acted in a reasonable and safe mzmner with regard to how practice drills were·conducted.and provided adequate supervision and warnings to players including the plaintiff. In support of its motion, NCAA submits, int~r alia, the affidavit of John Parsons, various communicaticms and scientific studies which were relied upon in assessing concussions andwhether helmetsshould be required for studentathletesparticipatin ginwomen' s lacrosse. NCAAargues that it did not owe any duty to warn individual players of the risks of concussions,.but evenifit did, such duty was satisfied by providing member institutions including Hofstra with the most current information about the risks ofconcussions. NCAA further argues that student athletes such as the plaintiff are provided detailed information and warnings, and as such, assume the risks. when participating. NCAA notes that there was no certified standard for women; s lacrosse headgear at the time of the plaintiff's injuries, and in fact no manufacturer made headgear for use by women; s lacrosse players while the plaintiff was playing. NCAA points to the litany of studies it provided in averring that the rule prohibiting helmets was based on careful analysis, wherein the ultimate consensus was that helmets couldincrease rather than decrease risk to women's lacrosse players. Mr. Parsons is· the managing director of the·. NCAA Sports •Science Institute, which is a resource for health and safety. In his affidavit, Mr. Parsons avers that the NCAA provides a sports medicine handbook as well as support and educational resources to each member institution including Hofstra. Mr. Parsons adds that onlyNCAA member institutions may propose and approve .rule changes through the playing rules committee, and as such; NCAA is unable to create or change playing rules on its own. 5 [* 5] 5 of 7 FILED: NASSAU COUNTY CLERK 12/03/2021 11:16 AM NYSCEF DOC. DOC. NO. NO. 580 INDEX INDEX NO. NO. 600400/2017 600400/2017 RECEIVED NYSCEF: NYSCEF: 12/01/2021 In opposition to the two motions, the plaintiff provides; inter alia, medical records ofthe plaintiff, studies regarding head injuries in collegiate athletics, and the reports of Dr. Robert C. Cantu, a neurologist; and R. DawnComstock,Ph,D.; a professor and epidemiologist. The plaintiff contends that the defendants breached a n1Ultitude of duties, including failing to use reasonable care in instituting safe practices and implementing adequate concussion protocols, failing to supervise the plaintiff, artd prohibiting the use ofhelmets. The plaintiff contends that these failures impacted her recovery and caused her to suffer permanent post-concussion issues. In support of her position, Dr. Cantu Opines that the plaintiff's injuries ate permanent and would have been prevented if the plaintiff were allowed to wear a helmet. Dr. Cantu adds that the plafotiff s concussion related symptoms caused a decline in her test scores which prevented her from being accepted into graduate school. Dr. Cantu concludes that the NCAA rendered the plaintiff vulnerable to concussions by failing to require the use· of helmets. Dr. Comstock opines thatwomen'.s lacrosse players have high concussion rates compared to other sports. Dr. Comstock notes that concussion rates have increased over time in women's lacrosse and opines that concussions would have 'been prevented if players were allowed to wear helmets as was allowed with men's teams. With theirsubmissions, Hofstra and Coach Smith have demonstrated primafacie. ent:itlement to judgment as a matter oflaw. Specifically, Hofstra artd Coach Smithmet their burden by providing expert opinions establishing that (1) Hofstra adequately informed the plaintiff of the risks associ&ted with concussions; (2) plaintiffwas injured while perfQrrriing common practice drills in conditions typical to women's lacrosse players under adequate supervision, {3} Hofstra properly implemented art adequate concussion protocol to manage the plaintiffs injuries, {4) Hofstra personnel, including Athletic Trainor DiMonda and contracted team physicians, acted properly at all times in caring for the plaintiff following her accidents, and (5) that the plaintiff assumed the risk of injury by voluntarily participatingdn the women's lacrosse tearri despite her knowledge that doing so could result in being struck by an errant ball or collidingwith anotherplayer (See, Brqwn, supra;see also, Alvarez, supra). · · · In her opposition papers, the plaintiff reiterates various allegations regarding duties that allegedly have been breached by defendantsHofstra am:l.Coach Smith, but fails to adequately address the conclusions of said defendants' experts that the parties' actions were not negligent. Here, the experts for the plaintiff offer no opinion regardingHofstra and Coach Smithto re but the defendants' experts' findings with regard to the safety ofthe practice drills, the adequacy ofconcussion protocols in place, the supervisionofthe plaintiff, the information provided to educate and warn the plaintiff regarding concussions, or the ~ctions of Coach Smith and others ir1vol ved inmartagirig the plaintiffs injuries. As such; the plaintiff failed to raise . an issue offact as to Hofstra and Coach Smith (See, Zuckerman, supra). . . Rather, the Court finds that the only questions of fact that exist regru-ding the negligence of any party herein pe~ins tC> the rule prohib~ting women's hicrosse .players from wearing helmets; 6 [* 6] 66 of 7 FILED: NASSAU COUNTY CLERK 12/03/2021 11:16 AM NYSCEF DOC. DOC. NO. NO. 580 INDEX INDEX NO. NO. 600400/2017 600400/2017 RECEIVED NYSCEF: NYSCEF: 12/01/2021 which \Vas under the purvh::\V of the NCAA rather than Hofstra or Coach Smith, As stated within the prior order herein of Justice Jeffrey S. Brm.vn dated September 5, 2017. the NCA/\ exercised significant control over the rules of play and equipment for women's lacrosse, and imposed conditions of membership on its member institutions ,vhich included requirements regarding head injury prntocols. As such, the NCAc1-'\ was charged with carrying out these functions with reasonable care (See, Serrell v, Connetquot Cent. High School Dist (~ff.dip, 280 AD2d 663 [2d Dept 200 l ]). The studies submitted by the plaintitl in COT1Jtmction \.\·1th Dr, Cantu's opinion that the plaintiff would not have suffered concussions had the NCA.A aHO\:ved \.vornen's lacrosse players to """ear helmets, are sufficient to create issues of fact as to \vhether the NCAA adequately discharged its duty to avoid exposing the plaintiff to risks that \vere ''unreasonably increased" (See, Benitez, supra; see also, Zuckerman, supra). In light of the foregoing, it is hereby . ORDERED that defendant Hofstra Universitv's and Shaimon Smith's motion for summarv•' judgment (Seq, No. 2 I) is granted and a!l claims against said defendants are hereby disrnissed; and. it is further ORDERED that defendant National Collegiate Athletic Association's motion for summary judgment (Seq. No . 22) is denied in its entirety. This shall constitute the decision and order of the Court. Dated: Mineola, Nev....- York November 29, 2021 NASSAU COUNTY COUNTY CLERK"S OFFICE 7 [* 7] 7 of 7

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