Cruser, Mitchell & Novitz, LLP, New York (Beth S. Gereg of counsel), for appellant.
Ogen & Sedaghati, P.C., New York (Eitan Alexander Ogen of .
Friedman, J.P., Richter, Feinman, Gische, Clark, JJ.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered August 13, 2012, which denied defendant's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion is granted. The Clerk is directed to enter judgment accordingly.
The motion court erred when it denied defendant's motion for summary judgment where plaintiff allegedly suffered an injury to his left knee while sparring with another student in a mixed martial arts class. It is well established that the doctrine of assumption of risk generally applies where the plaintiff is injured while voluntarily participating in a sport or recreational activity, and the injury-causing event is a "known, apparent or reasonably foreseeable consequence of the participation" (Turcotte v Fell, 68 N.Y.2d 432, 439 ). The participant engaging 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 v State of New York, 90 N.Y.2d 471, 484 ). Further, the assumption of risk doctrine considers the appreciation of risk measured "against the background of the skill and experience of the particular plaintiff" (Maddox v City of New York, 66 N.Y.2d 270, 278 ).
Here, at the moment of the alleged injury, it was plaintiff's first day in the advanced mixed martial arts class where he participated in a sparring match with a "stockier" opponent. However, plaintiff had participated in sparring sessions within the beginner classes for over a month and a half. Additionally, plaintiff's experience included service in the Israeli army between 1997 and 2000, where he fought in Lebanon. In 2002, plaintiff received 10 weeks of combat training. This training provided instruction on hand-to-hand attacks and defense against armed and unarmed attacks. Between 2005 and 2009, plaintiff was employed as an air marshal, where his training included "survival krav maga."
At the deposition, plaintiff answered questions about the application he filled out when he started taking classes with defendant. Plaintiff indicated that he wrote "yes" to prior martial arts experience and wrote a description of that experience as "survival krav maga." Further, plaintiff explained "that was the name" of the training he received as an air marshal, which he later described as "fighting."
Given plaintiff's extensive training plus his experience in mixed martial arts, he had a full appreciation of the risks involved in fighting, punching, kicking and grappling during the mixed martial arts sparring sessions. While the dissent asserts that the trainer's assurances concealed or heightened the risk of injury here, it is important to note that plaintiff was exposed to the same risk of injury when he fought the "tall thin" student as well as the "stockier" student, i.e., before any alleged assurances were made. Plaintiff already lost a sparring match to the tall thin student in the advanced class. Then, he had an opportunity to observe the stockier student before entering the cage. His statements to the trainer noting the size difference between himself and the "stockier" opponent demonstrated his appreciation of the risk before sparring. Moreover, even though plaintiff asserts that the take down that allegedly caused his knee injury was an advanced maneuver, take downs were a reasonably foreseeable consequence of participating in the mixed martial arts sparring session (see e.g. Edelson v Uniondale Union Free School Dist., 219 A.D.2d 614 [2d Dept 1995]).
All concur except Feinman, J. who dissents in a memorandum as follows:
FEINMAN, J. (dissenting)
I respectfully dissent, because, in my view, the motion court, having identified a triable issue of material fact, properly denied defendant's summary judgment motion.
Plaintiff enrolled in beginner classes at defendant's martial arts academy in January 2010. Defendant's employee, Steve Williams, instructed plaintiff's classes, which included sparring sessions between students. In March 2010, Williams suggested that plaintiff try an advanced class. When plaintiff asked Williams if he would appropriately "fit there, " Williams told him that he "shouldn't be worried. You'd be okay there."
On March 11, 2010, plaintiff attended his first advanced class, which Williams also instructed. During the class, plaintiff first sparred with a "tall thin guy" and lost. A "stocky guy" then sparred with the thin guy and won. Williams then instructed plaintiff to spar with the "stocky guy". Because the stocky guy looked "tougher, " plaintiff told Williams, "It doesn't look like a match." Williams replied, "Don't worry about it" and "I got your back. He knows what he's doing. He's got the skills, the techniques to control himself." Plaintiff then proceeded to spar with the "stocky guy." According to plaintiff, the "stocky guy" used an unfamiliar, advanced maneuver to force plaintiff to the floor. Due to his resulting injuries, plaintiff underwent two knee surgeries.
As the majority notes, plaintiff had received some martial arts training while serving in the Israeli army from 1997 through 2000. He also received training in defense against armed and unarmed attacks in 2002, prior to working as an air marshal from 2005 through 2009. However, plaintiff never received formal martial arts training. In addition, I cannot find sufficient support in the record for defendant's assertion, adopted by the ...