Monday, May 2, 2016

Primary assumption of the risk.

Practice point:  The Appellate Division affirmed the granting of defendant's summary judgment motion in this action where plaintiff seeks damages for personal injuries sustained while driving a go-kart at a track owned and operated by defendant. The Appellate Division found that the Supreme Court improvidently exercised its discretion in declining to consider the affidavit of plaintiff's expert on the ground that the expert was not disclosed until after the note of issue was filed, as there was no evidence that plaintiff's delay in retaining the expert or in serving the expert information was intentional, willful, or prejudicial to defendant, pursuant to CPLR 3101[d][1][i]. Nevertheless, the affidavit failed to raise a triable issue of fact. While the expert alleged that the go-kart did not comply with safety guidelines promulgated by the American Society for Testing and Materials, those guidelines are nonmandatory, and insufficient to raise a triable issue of fact as to whether defendant was negligent.

Student note:  Defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that, under the doctrine of primary assumption of the risk, plaintiff assumed the risks inherent in driving a go-kart, including the risk of sustaining injuries in the manner in which plaintiff did in this case.  In opposition, plaintiff failed to raise a triable issue of fact as to whether defendant unreasonably increased the risk of injury above and beyond the usual dangers inherent in the sport.

Case: Augustin v. Grand Prix N.Y. Racing, LLC, NY Slip Op 02948 (2d Dep't 2016)

Here is the decision.

Tomorrow's issue:  The termination of a forum selection clause.