United States District Court, S.D. New York
March 19, 2004.
PHYLLIS ELLIOTT, Plaintiff, -against- CLUB MED SALES, INC., COMPLEJOS TURISTICOS DE HUATULCO, S.A., AND OPERADORA DE ALDEAS VACACIONALES, S.A., DE C.V. Defendants
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
MEMORANDUM & ORDER
Phyllis Elliott ("Plaintiff") brings this personal injury diversity
action against Defendants Club Med Sales, Inc. ("Club Med"), Complejos
Turisticos de Huatulco, S.A. ("Owner"), and Operadora de Aldeas
Vacacionales, S.A., de C.V. ("Operator")*fn1 (collectively,
"Defendants"), alleging common law negligence. Defendants now move for
Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the
reasons stated below. Defendants' Motion for Summary Judgment is DENIED.
The present action arose from injuries that Plaintiff suffered on March
31, 1998, during a snorkeling excursion she
took part in while vacationing with her two daughters at the Club Med
resort village in Huatulco, Mexico. (Defendants' Local Civil Rule 56.1
Statement ["Defs.' 56.1 Stmt"] ¶ 1; Plaintiff's Response to Defendant's
Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 ["Pl.'s
56.1 Stmt."] at I).*fn2 Defendant Operadora de Aldeas Vacacionales,
S.A. de C.V. was the operator of the resort when Plaintiff's accident
occurred. (Defs.' 56.1 Stmt. ¶ 4; Pl.'s 56.1 Stmt. at 1). Defendant
Complejos Turisticos de Huatulco, S.A. was the resort owner when
Plaintiff's accident occurred. (Defs.' 56.1 Stmt. ¶ 5; Pl.'s 56. 1 Stmt.
Plaintiff had gone snorkeling before this 1998 vacation. (Defs.' 56.1
Stmt. ¶ 6; Pl.'s 56.1 Stmt. at 1). She had snorkeled in Cozumel in
the early 1970's and had also gone for `a couple' of sessions in
Vieques, Puerto Rico. in 1995 or 1996, though she had always walked into
the water from the beach and had never previously snorkeled off of a
boat. (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1 Stmt. at 1; Deposition of
Phyllis Elliot Terkeltaub, September 8, 2000 ["Elliott Dep."] at 13). In
addition, in her prior snorkeling sessions, Plaintiff "had never worn a
life jacket or flotation device," as she had never been
in water that was over her head. (Defs.' 56.1 Stmt. ¶ 6; Pl.'s 56.1
Stmt. at 1).
Plaintiff had also gone boating from time to time over the years.
Defs.' 56.1 Stmt. ¶ 7; Pl.'s 56.1 Stmt. at 1. As she recounted during
her deposition, "sailing was 1977, sailboat on a lake, throughout the
years of the '80's, motorboat, occasional sailboat, Fire Island ferry,
everywhere and anywhere." (Elliott Dep. at 28; Defs.' 56.1 Stmt. ¶ 7;
Pl.'s 56.1 Stmt. at 1).
Plaintiff arrived at the Club Med resort in Huatulco. with her two
daughters on March 30, 1998. (Defs.' 56.1 Stmt. ¶ 8; Pl.'s 56.1 Stmt.
at 1). They decided the next morning to join a group snorkeling trip that
departed from the resort. (Defs.' 56.1 Stmt. ¶ 9; Pl.'s 56.1 Stmt. at
1). The weather that day was "[p]erfect, gorgeous," with little wind and
calm waters. (Elliott Dep. at 80; Defs.' 56.1 Stmt. ¶ 10; Pl.'s 56.1
Stmt. at 1). At about 10:20 a.m. Plaintiff and her daughters asked to go
on the snorkeling trip and were issued snorkeling tubes and flippers" at
the "little shop . . . beach side." (Defs.' 56.1 Stmt. ¶ 11; Pl.'s
56.1 Stmt. at 1; Elliott Dep. at 18).
Plaintiff was aware when she signed up for the trip that she would be
snorkeling off of a boat, and not walking into the water from the beach.
(Defs.' 56.1 Stmt. ¶ 12; Pl.'s 56.1 Stmt.
at 1; Elliot Dep. at 20). Though written signs were posted at the
little shop describing the trip, Plaintiff concedes that she did not read
them. (Defs.' 56.1 Stint. ¶ 13; Pl.'s 56.1 Stmt. at 1; Elliot Dep.
The group reached the snorkeling site aboard the "Coyote," an
approximately 30-foot sailboat with a center cabin and a rope railing
surrounding its perimeter. (Defs.' 56.1 Stmt. ¶ 14, 15; Pl.'s 56.1 Stmt.
at 1). At the snorkeling site, Christian Frenette, the village staff
person leading the snorkeling trip, warned the guests to stay together, to
stay away from rocks, and not to stay in the water too long. (Defs.' 56.1
Stmt. ¶¶ 1, 15; Pl.'s 56.1 Stmt. at 1). He instructed the entire group,
including Plaintiff, on how to enter the water from a ladder on the right
side of the boat, (Elliot Dep. at 43-44); however, Plaintiff did not hear
him instruct the group on entering the water by jumping off the side of
the boat. (Id. at 44-45). Plaintiff's daughters went snorkeling, but
Plaintiff initially decided to remain behind. (Defs.' 56.1 Stmt. ¶ 16;
Pl.'s 56.1 Stmt. at 1).
At about 11:30 a.m., Plaintiff decided to go snorkeling as well.
(Defs.' 56.1 Stmt. ¶ 17; Pl.'s 56.1 Stmt. at 1). Plaintiff was not
nervous about swimming or snorkeling in this
area. (Defs.' 56.1 Stmt. ¶ 18; Pl.'s 56.1 Stmt. at 1; Elliot Dep. at 58).
Plaintiff alleges that, because she does not swim, she had to borrow a
life vest from another guest before approaching Frenette about entering
the water. (Elliott Dep. at 14-15, 55).
Plaintiff told Frenette that she wished to enter the water via the
ladder, but Frenette told Plaintiff that snorkelers returning to the boat
were using the ladder to get back on board and that Plaintiff should
instead enter the water by jumping off the side of the boat. See Defs.'
56.1 Stmt. ¶ 19, 20; Pl.'s 56.1 Stmt. at 1. Up to that point. Plaintiff
had only witnessed the other snorkeling guests enter the water at
Frenette's direction by way of the ladder. (Pl.'s 56.1 Stmt. at 1;
Elliott Dep. at 51). Aside from telling her to enter the water by
jumping, Frenette did not give Plaintiff any further instructions on how
to do so. (Elliot Dep. at 61).
Though Plaintiff asserts that she was "more comfortable using the
ladder" (Elliot Dep. at 58), she also admits that she "felt comfortable
enough" to jump into the water from the deck of the boat. (Defs.' 56.1
Stmt. ¶ 22; Pl.'s 56.1 Stmt. at 2; Elliott Dep. at 58). Plaintiff
testified in her deposition that the distance from the deck of the boat
to the water surface was
"three to four feet." (Defs.' 56.1 Stmt. ¶ 23; Pl.'s. 56.1 Stmt. at 2;
Elliott Dep. at 79).
Plaintiff's decision to participate in snorkeling and to jump into the
water from the deck were voluntary. (Defs.' 56.1 Stmt. ¶ 24; Pl's
56.1 Stmt. at 1). Plaintiff concedes she was never forced by anyone to
enter the water. (Defs.' 56.1 Stmt. ¶ 27; Pl.'s 56.1 Stmt. at 2).
Plaintiff approached the perimeter of the boat, wearing her mask, along
with the vest, and either carrying or wearing her flippers, and held onto
the rope railing with her right hand. (Defs.' 56.1 Stmt. ¶ 28; Pl.'s
56.1 Stmt. at 1). Plaintiff knew from common sense that she would have to
let go of the railing to enter the water. (Defs.' 56.1 Stmt. ¶ 29;
Pl.'s 56.1 Stmt. at 1). Plaintiff let go of the rail and then "literally
stepped off" the edge of the boat. (Elliot Dep. at 62, 72; Defs.' 56.1
Stmt. ¶ 30; Pl.'s 56.1 Stmt. at 1). Plaintiff "hit something on the
boat going in, jumping in the water," though she could not identify what
part of the boat she hit. (Elliott Dep. at 81 Defs.' 56.1 Stmt. ¶ 31;
Pl.'s 56.1 Stmt. at 1).*fn3 Plaintiff
suffered a fractured right arm from her accident. (Defs.' 56.1 Stmt
¶ 32; Pi.'s 56.1 Stmt at 2; Elliot Dep. at 83).
Plaintiff commenced this action on February 18, 1999, alleging that
Defendants' negligence caused her to suffer "substantial" injuries,
"great physical pain, emotional and psychological anguish," and seeking
two million dollars in damages to compensate for her injuries and the
medical expenses and lost income which followed. (Second Amended
Complaint ["2nd Am. Compl."] ¶¶ 16-18, 20, 21, 25, 29).*fn4 Defendants
filed their Answer on May 16, 2000, and thereafter, the parties commenced
more than two years of discovery and protracted settlement negotiations
that ultimately proved unsuccessful. Defendants now move for summary
judgment on the grounds that the assumption of risk doctrine bars
Plaintiff's negligence claims.
A. Summary Judgment Standards
The principles applicable to Summary Judgment are familiar and
well-settled. Summary Judgment may be granted only when there is no
genuine issue of material fact remaining for trial, and the moving party
is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Corselli v.
Coughlin, 842 F.2d 23 (2d Cir. 1988). "[T]he plain language of Rule 56(c)
mandates the entry of summary judgment, . . . against a party who fails
to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the
burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322
As a general rule, ambiguities and inferences drawn from the underlying
facts must be resolved in favor of the party contesting the motion, and
all uncertainty as to the existence of a genuine issue for trial must be
resolved against the moving party. See Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 11 (2d Cir. 1986). As is often stated, "[v]iewing the
evidence produced in the light most favorable to the nonmovant, if a
rational trier could not find for the nonmovant, then there is no genuine
issue of material fact and entry of summary judgment
is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191
(2d Cir. 1991); see also Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d
B. Negligence and Assumption of Risk Doctrine
Plaintiff claims that her personal injuries were caused by Defendants'
negligence in conducting the snorkeling activity. (2nd Am Compl. ¶
18). Defendants contend that assumption of risk doctrine bars Plaintiff's
claims. (Memorandum of Law in Support of Defendants' Summary Judgment
Motion ["Def. Mem."] at 1, 2, 11; Reply Memorandum of Law in Support of
Defendants' Summary Judgment Motion ["Def. Reply"] at 1, 5).
Because the present case is a diversity action involving common law
negligence claims, New York law applies. See Patch v. Stanley Works,
448 F.2d 483, 487 (2d Cir. 1971) (noting that a federal Court sitting in
diversity shall apply the substantive law of the forum state) (citing
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)); Velez v. Sebco. Laundry
Sys., Inc., 178 F. Supp.2d 336, 339 (S.D.N.Y. 2001) (same).*fn5 New York
differentiates between two distinct assumption of risk doctrines. The
first doctrine, codified in N.Y. C.P.L.R. § 1411, is founded on the
concept of "culpable conduct attributable to the claimant." N.Y.
C.P.L.R. § 1411. Like comparative negligence, this doctrine of assumption
of risk does not bar recovery, but diminishes recovery in the proportion
to which the claimant contributed to his injuries. N.Y. C.P.L.R. § 1411;
see generally Arbegast v. Board of Education of South New Berlin Central
School, 65 N.Y.2d 161, 165-170 (1985) (discussing New York law before and
after enactment of C.P.L.R. § 1411). Defendant does not move for Summary
Judgment on this basis.
The second doctrine, known as primary assumption of risk, retains the
old common-law rule whereby assumption of risk constitutes a complete
defense against a plaintiff's action for negligence. See Turcotte v.
Fell, 68 N.Y.2d 432, 438-439 (1986) (establishing primary assumption of
risk doctrine). "The doctrine of primary assumption of risk is not a
measure of a plaintiff's comparative fault, but a measure of the
defendant's duty of care." Goodlett v. Kalisheck, 223 F.3d 32, 36 (2d
Cir. 2000); see also Turcotte, 68 N.Y.2d at 438-439. As the New York
Court of Appeals has explained, "assumption of risk in this form is
really a principle of no duty, or no negligence and so denies the
existence of any underlying cause of action." Morgan v. State of New
York, 90 N.Y.2d 471, 485 (1997) (emphasis in original) (citation
omitted). See also C.P.L.R. § 1411 (codifying New York's implied
assumption of risk doctrine according to the principle of "culpable
conduct", similar to comparative negligence); Turcotte, 68 N.Y.2d at
The primary assumption of risk doctrine is most frequently invoked in
connection with voluntary participation in sports and recreational
activities. The doctrine originates with a 1929 opinion, written by Judge
Cardozo, in which the Court of Appeals held that: "[o]ne who takes part
in such a sport accepts the dangers that inhere in it so far as they are
obvious and necessary, just as a fencer accepts the risk of a thrust by
his antagonist or a spectator at a ball game the chance of contact with
the ball." Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482
By now, it is well-settled that a voluntary participant in a sport or
recreational activity "consents to those commonly appreciated risks which
are inherent in and arise out of the nature of the sport generally and
flow from such participation." Morgan, 90 N.Y.2d at 484. By his or her
plaintiff assumes any risks that are known, apparent, or reasonably
foreseeable consequences of participation. See Turcotte, 68 N.Y.2d at
439. Participants do not, however, assume "concealed or unreasonably
increased risks," Benitez v. New York City Board of Education,
73 N.Y.2d 650, 658 (1989), nor do they assume risks resulting from the
defendant's reckless or intentional conduct. See McGee v. Board of
Education, 16 A.D.2d 99 (N.Y. App. Div. 1st Dep't 1962), (holding that
defendant high school baseball coach's instructions to player to throw
baseball to third base which resulted in plaintiff teacher being hit in
the face by the ball is not reckless or intentional conduct), appeal
denied, 13 N.Y.2d 596 (1963). So long as the risk is open and obvious,
the fact that a defendant could have provided safer conditions is
irrelevant. See Simoneau v. State of New York, 248 A.D.2d 865, 866-67
(N.Y. App. Div.3d Dep't 1998). A defendant's only duty under such
circumstances is to "make the conditions as safe as they appear to be."
Turcotte, 68 N.Y.2d at 439.
A court's inquiry into whether a participant assumed the risks inherent
in a given sport or activity hinges, then, on his or her awareness of
that risk. To have assumed the risk, a participant need not have
"foreseen the exact manner in which his or her injury occurred, so long
as he or she is aware of the
potential for injury or the mechanism from which the injury results."
Maddox v. City of New York, 66 N.Y.2d 270, 278 (1985).
The participant's experience level is relevant to this inquiry.
"[A]wareness of risk is not to be determined in a vacuum. It is, rather,
to be assessed against the background of the skill and experience of the
particular plaintiff." Maddox, 66 N.Y.2d at 276. Such a determination is
not to be wholly subjective. In cases involving primary assumption of
risk, the Court of Appeals has also taken judicial notice of what "[a]
reasonable person of participatory age or experience must be expected to
know." Morgan, 90 N.Y.2d at 488. Additionally, New York courts have held
that an appreciation of a risk may also be imputed to a participant who,
though a complete novice to the activity, has witnessed contemporaneous
incidents. See Sajkowski v. YMCA of Greater New York, 269 A.D.2d 105, 106
(N.Y. App. Div. 1st Dept. 2000).
"[F]or purposes of determining the extent of the threshold duty of
care, knowledge plays a role but inherency is the sine qua non." Morgan,
90 N.Y.2d at 484. In addition to assuming risks inherent in the
activity, a participant also consents to commonly appreciated risks that
"flow" from participation. Id.; see also Goodlett v. Kalisheck, 223 F.3d 32
(2d Cir. 2000)
(holding that the risk of mid-air collision by planes after race had
ended "flows" from participation). The participant does not assume a
risk, however, if the defendant's negligence created a unique and
dangerous condition beyond the usual dangers inherent in the activity.
Morgan, 90 N.Y.2d at 488 (holding that "a torn net is not an 'inherent'
part of the game of tennis in and of itself"). If a participant is aware
of an increased risk, however, he or she is deemed to have assumed that
risk as well. Bereswill v. National Basketball Association, Inc.,
279 A.D.2d 292, 294 (N.Y. App. Div. 1st Dept. 2001) (holding that a
professional photographer who was injured during professional basketball
game by player who dove out of bounds in pursuit of loose ball assumed
the risk of injury by continuing to work from courtside spot during
In the Court of Appeals' most recent pronouncement on the doctrine, the
Court held that even a complete novice who had not witnessed any
contemporaneous incidents was found to have assumed the risks of
participation in a specific recreational activity. The plaintiff in
Marcano v. City of New York, 99 N.Y.2d 548 (2002), was injured when he
fell from a set of parallel exercise bars set over a concrete floor.
Prior to his accident, the plaintiff had never used parallel or dip bars
before, had never been instructed on how to use them, and had
never seen anyone else use this type of equipment. Marcano v. City of New
York, 296 A.D.2d 43, 44 (N.Y. App. Div. 1st Dept. 2002), rev'd,
99 N.Y.2d 548 (2002). The Court of Appeals nevertheless reversed the
lower court and granted the defendant's motion for Summary Judgment,
holding that the "[p]laintiff assumed the risk of injury when he swung
on, and subsequently fell off, an exercise apparatus constructed over a
concrete floor." Marcano, 99 N.Y.2d at 548. While the Court of Appeals'
one-page decision gave no explicit reasoning for its holding, the
decision clearly establishes that there are in fact some risks associated
with certain sports and recreational activities which are so open and
obvious that even a novice who has never witnessed the activities being
performed will be deemed to be aware of them.
C. The Assumption of Risk Doctrine and Plaintiff's Claims Applying
these standards to Plaintiff's claims, there exists a material issue of
fact as to whether Plaintiff's conduct falls within the primary
assumption of risk doctrine. While Plaintiff was clearly a "reasonable
person of participatory age and experience" with respect to snorkeling who
could appreciate the inherent risks of that activity, there is nothing in
the record that firmly establishes she had a similar level of experience
when it came to jumping off of a boat.
After all, while Plaintiff had gone snorkeling and boating on several
occasions prior to her boat-jumping accident, (Defs'. 56.1 Stint ¶¶ 2, 6,
7; Pl's. 56.1 Stmt at 1), there is no mention in either party's 56.1
Statement nor Plaintiff's deposition testimony of Plaintiff having any
prior experience jumping off of boats into water. Moreover, while she knew
to take the reasonable precaution of wearing a life vest when snorkeling
because she did not know how to swim (Elliot Dep. at 14-15, 55), she did
not know to jump away from rather than to step off of the boat deck when
jumping into the water to avoid hitting the boat on the way down (Def.
56.1 Stmt ¶ 27; Elliot Dep. at 62, 72), a safety measure with which a
person experienced in jumping off of boats would undoubtedly be familiar.
Add to this lack of experience the fact that Plaintiff did not witness
any of the other snorkelers on the March 31, 1998 trip jump off of the
boat into the water before her. (Pl. 56.1 Stmt at 1; Elliot Dep. at 51),
and Plaintiff's situation is quite distinct from the majority of New York
cases cited by Defendants in which the assumption of risk doctrine was
held to bar the plaintiff's personal injury claims. See, e.g., Maddox, 66
N.Y.2d at 278 (professional baseball player with extensive experience
playing on grass fields deemed aware of risk posed by mud on the wet field
where his injury occurred); Sajowski, 269
A.D.2d at 106 (plaintiff who observed several people before her swing
from rope in gym fully comprehended risks involved in swinging from the
rope); Bereswill, 279 A.D.2d at 293 (sports photographer who had
photographed professional basketball games from same spot on court for
several years deemed aware of risks inherent in taking pictures at such
close proximity to the game action).
Defendants cite Marcano and Chimerine v. World Champion John Chung Tae
Kwon Do Instit., 90 N.Y.2d 471 (1997), in arguing that Plaintiff's lack
of personal experience jumping off of boat decks is irrelevant because
the risk of injury involved in jumping was "readily apparent, if not open
and obvious" to a reasonable person of participatory age and experience.
(Def. Reply at 2-4). However, unlike the concrete floor that caused
injury to the plaintiff in Marcano, it is not at all clear from the
record that the part of the boat which Plaintiff struck during her jump
into the water was even visible to her as she stood on the deck preparing
to jump. Similarly, while the martial arts training during which the
plaintiff was injured in Chimerine involved certain athletic
activities-jumping, hopping and kicking-which any person with a
reasonable amount of common sense knows can lead to the leg injuries like
the ones the plaintiff suffered, 90 N.Y.2d at 488, a broken arm is not a
that the average person who has never jumped from a boat before would
usually associate with jumping into deep water from a height of only
three to four feet.*fn6
In fact, it is at least arguable that Defendant's agent, Frenette,
actually increased Plaintiff's risk of injury by directing her to jump
from the boat deck instead of entering the water by the ladder and
failing to instruct her on how to jump safely. After all, Plaintiff had
fully intended to use the ladder to enter the water, just as she and all
the other snorkelers had been instructed to do, until Frenette told her
she would have to jump off the deck of the boat (Elliot Dep. at 56-59).
While Plaintiff conceded that no one forced her to jump from the boat
deck (Defs.' 56.1 Stmt. ¶¶ 22, 24, 27; Pl.'s 56.1 Stmt. at 1-2), she chose
to do so, as discussed above, without a true awareness of the risks
involved, and such awareness is a prerequisite to the application of the
assumption of risk doctrine. See Turcotte v. Fell, 68 N.Y.2d at 437
(specifying that a plaintiff has consented to the risks of an activity
when such risks "are fully comprehended or perfectly obvious."). Indeed,
Plaintiff was in a very a different position from the sports photographer
plaintiff in Breswell, who was very aware of
the increased risk of injury caused by positioning himself so close to
the basketball court while photographing the game. 279 A.D.2d at 294.
Furthermore, unlike the rope swinging activity in Sajkowski, where the
defendant's failure to instruct the plaintiff did not unreasonably
increase her risk of injury, 269 A.D.2d at 106-107, jumping off of a
swaying boat into water wearing full snorkel gear could be viewed as an
activity requiring specialized training, instruction or skill; otherwise,
at least some of the other guests on Plaintiff's snorkeling trip would
likely have tried it.
Thus, in the Court's view, the only activity for which Plaintiff
clearly assumed the risk of injury was snorkeling, and breaking an arm by
hitting the side of a boat is not a risk that commonly "flows" from
participating in snorkeling. Moreover, a factual dispute exists as to
whether Defendants, through the conduct of their agent, in fact increased
Plaintiff's chance of injury by placing her in a situation where she made
an uninformed choice to engage in the activity, jumping off of a boat
deck, which led to her injury. Thus, the Court cannot find that, as a
matter of law, Plaintiff assumed the risk of her injuries.
For the reasons stated above, Defendants' motion for Summary Judgment