Wednesday, August 26, 2015

A golf-cart injury and assumption of risk.

Practice point:  The Appellate Division reversed the motion court and dismissed the complaint in this action arising from plaintiff's injury when she was thrown from a golf-car in which she was a passenger.  The Appellate Division found that plaintiff knowingly and voluntarily rode in the cart during a golf tournament in which plaintiff was assigned to monitor a par-three hole for any player who got a hole-in-one. While plaintiff contends that she did not know that the operator was an unlicensed driver, she knew that he was a minor yet made no attempt to determine whether he had a license or whether he should be operating a golf cart.

The Appellate Division stated that the fact that plaintiff was not actively performing her duties of monitoring the hole at the time of her injury does not render the doctrine inapplicable, as it applies to any facet of the activity inherent in it. The salient point is that the accident involved a sporting or recreational activity that occurred in a designated athletic or recreational venue.

Student note:  A plaintiff who voluntarily participates in a sporting or recreational event generally is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, participation in the sport.  It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which the injury occurred, so long as the plaintiff is aware of the potential for injury of the mechanism from which the injury results. Note that a nonparticipant may also be subject to a defense based on the doctrine of assumed risk.

Case:  Valverde v. Great Expectations, LLC, NY Slip Op 06561 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  CPLR 3215 and a motion for a default judgment.