Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered January 28, 2011 in a personal injury action. The order granted the motion of defendant for summary judgment and dismissed the complaint.
Close v Darien Lake Theme Park & Camping Resort, Inc.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND MARTOCHE, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained on a water ride in an amusement park owned by defendant. Contrary to plaintiff's contention, Supreme Court properly granted the motion of defendant for summary judgment dismissing the complaint. "[B]y engaging in a sport or recreational activity, a participant 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 v State of New York, 90 NY2d 471, 484; see Anand v Kapoor, 15 NY3d 946, 947-948; Turcotte v Fell, 68 NY2d 432, 439; Maddox v City of New York, 66 NY2d 270, 277-278). Awareness of the risk is " to be assessed against the background of the skill and experience of the particular plaintiff' " (Morgan, 90 NY2d at 486, quoting Maddox, 66 NY2d at 278). Here, "defendant sustained its burden of proving its prima facie entitlement to judgment as a matter of law . . . by presenting evidence that the plaintiff understood and voluntarily assumed the risks inherent in the activity at issue" (Leslie v Splish Splash at Adventureland, Inc., 1 AD3d 320, 321). Contrary to plaintiff's contention, she failed to raise a triable issue of fact whether defendant engaged in reckless or intentional conduct or whether there existed a dangerous condition that concealed or unreasonably increased the risks of the ride (see Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 959; see also Loewenthal v Catskill Funland, 237 AD2d 262, 263-264). Entered: June 8, 2012 Frances E. Cafarell Clerk of the Court
© 1992-2012 VersusLaw ...