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United States District Court, S.D. New York

March 19, 2004.


The opinion of the court was delivered by: DEBORAH BATTS, District Judge


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 Page 2 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. at 1).

  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 Page 3 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. Page 4 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. at 21-22).

  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 Page 5 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 Page 6 "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 Page 7 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. Page 8


 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 (1986).

  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 Page 9 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 Cir. 2001).

 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 law Page 10 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 Page 11 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 438-439.

  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 (1929).

  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 participation, the Page 12 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 Page 13 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) Page 14 (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 game).

  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 Page 15 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. Page 16 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 Page 17 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 risk Page 18 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 Page 19 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. Page 20


  For the reasons stated above, Defendants' motion for Summary Judgment is DENIED.


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