DAVID JAROSLAWICZ, ESQ., JAROSLAWICZ & JAROS, LLC, New York, NY, Attorneys for Plaintiff.
KEITH V. TOLA, ESQ., RONDIENE E. NOVITZ, ESQ., CRUSER, MITCHELL & NOVITZ, LLP Melville, NY, Attorneys for Defendant.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, District Judge.
On July 19, 2011, plaintiff Brenda Diaz ("plaintiff" or "Diaz") commenced this action against defendant High Rollers Recreational Center, Inc. ("defendant" or "High Rollers"). Plaintiff asserts one negligence claim arising from injuries she sustained on July 2, 2010, at defendant's roller rink in Amsterdam, New York. Subject matter jurisdiction is based on the complete diversity of the parties as Diaz is a resident of Puerto Rico and High Rollers is a New York corporation, and the amount in controversy exceeds $75, 000. See 28 U.S.C. § 1332(a).
The parties have completed discovery and, on November 1, 2012, defendant filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. ECF No. 13. Plaintiff has responded in opposition, and defendant replied. The motion was considered on submit without oral argument.
II. FACTUAL BACKGROUND
Unless otherwise noted, the following facts are undisputed. During the relevant time period, High Rollers owned and operated a roller rink in Amsterdam, New York. On the evening of July 2, 2010, Diaz-then a thirty-three-year-old experienced roller skater-arrived at this facility with several family members including her five-year-old son and her sisters, Norma Diaz ("Norma") and Catherine Perez ("Catherine"). Two "Floor Guards" employed by defendant were working that night. Their duties included staffing the equipment rental booth and patrolling the rink to maintain order. Two managers were also working at the facility on that date. During their depositions, these employees reported that defendant's general policy with regard to reckless skaters is to issue a warning for the first offense and remove them from the rink floor after a second offense.
When she entered the building and looked toward the rink floor on July 2, 2010,  Diaz immediately noticed a young male with long hair wearing jeans and a black jacket skating aggressively and at a higher rate of speed than the other skaters. At various points throughout the evening she observed this person skating fast and cutting in front of other skaters. Catherine advised that she had seen this skater at the High Rollers rink before and cautioned Diaz to "watch out" for him. Pl.'s Dep. Tr., Tola Affirmation, Ex. C, ECF No. 14-3, 73:19-23. Neither plaintiff nor her family members reported this skater to any of defendant's employees. Both Floor Guards and managers denied observing anyone skating recklessly on the evening of July 2, 2010, and denied receiving any complaints about such a skater on that date.
Diaz remained at the roller rink for approximately two hours, during which she entered and exited the rink floor for three separate skating sessions that each lasted approximately twenty minutes. The first two sessions were without incident. While skating near her son and Norma during the third session, however, plaintiff was struck from behind by an unidentified skater, fell to the floor, and suffered a severely broken right ankle. She claims that she was struck by the unidentified young male with long hair whom she had seen skating aggressively throughout the evening. She specifically claims that she saw this skater stumbling next to her after she felt the impact from behind and began falling. Norma also observed the same young male skater near plaintiff just prior to the fall. Various witnesses reported that there was between twenty-five to 100 skaters on the rink floor at the time of the incident.
Both Floor Guards and one of the managers came to Diaz's aid within approximately thirty seconds of her fall. They lifted her off the rink floor, carried her several feet, and placed her on a bench. Her injured leg was elevated, and one of the Floor Guards removed her roller skates and socks. An ambulance was summoned and arrived within twenty-five minutes. The ambulance crew placed her right ankle in a soft splint and applied an ice pack. Plaintiff was transported to St. Mary's Hospital where she was given pain medication, and her right leg below the knee was x-rayed and placed in a hard splint. She was then transferred to Albany Medical Center for possible surgery. However, after more x-rays the need for surgery was ruled out, and a hard cast was placed on her right ankle.
Norma filled out a written incident report at the roller rink and noted that "while skating another person who was going fast bumped into her accidentally causing her to fall and land on her right ankle." Tola Affirmation, Ex. M, ECF No. 14-13. Plaintiff has retained Leonard K. Lucenko, Ph.D., a Roller Skating Safety and Risk Management Consultant, as an expert. His report and opinion generally supports her negligence claim.
Diaz alleges that defendant negligently caused her injury by failing to supervise the skaters on the rink floor, allowing reckless skating, and providing poor medical care that aggravated her injury. High Rollers maintains that it is entitled to summary judgment because: (1) plaintiff assumed the inherent risks of injury associated with roller skating; (2) the supervision provided by defendant was adequate and not a ...