United States District Court, N.D. New York
THOMAS J. MOVERMAN, ESQ., LIPSIG, SHAPEY, MANUS & MOVERMAN, P.C., New York, New York, Attorneys for Plaintiff.
DANIEL R. SANTOLA, ESQ., POWERS & SANTOLA, LLP, Albany, New York, Attorneys for Plaintiff,
PETER M. SCOLAMIERO, ESQ., BURKE, SCOLAMIERO, MORTATI & HURD, LLP, Albany, New York, Attorneys for Defendant Adventure Racing Co., LLC
CRYSTAL R. PECK, ESQ. JOHN W. BAILEY, ESQ., BAILEY, KELLEHER & JOHNSON, P.C. Washington Avenue Extension, Albany, New York, Attorneys for the Lapper Defendants.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, Jr., Senior District Judge.
Plaintiff Sergio Corneli ("Plaintiff") has filed an Amended Complaint claiming that a go-kart owned by Defendant Adventure Racing Co., LLC ("Adventure Racing") and operated by Defendant C.S.,  at the time a seventeen-year-old infant child, who suffered from Down's Syndrome, struck a go-kart that Plaintiff was operating and seriously injured him.
In that amended complaint, Plaintiff alleges four negligence-based causes of action: (1) against Defendant Adventure Racing for "ownership, operation, management, maintenance, supervision, staff training and control of its go-kart ride" and "supervision and control of its customer, C.S.", (2) against Defendant C.S. for operating and driving a go-kart in a dangerous manner, (3) against Defendant Jonathan Lapper for knowingly allowing Defendant C.S., allegedly his son, to operate a go-kart in a dangerous manner, and (4) against Defendant Charlotte Lapper for knowingly allowing her son, Defendant C.S., to operate a go-kart in a dangerous manner.
Plaintiff also alleges claims based on the theory of "negligent entrustment": (5) against Defendant Jonathan Lapper for entrusting a dangerous instrumentality, a go-kart, to Defendant C.S. despite knowing that C.S. intended to operate the go-kart in an unsafe manner, and (6) against Defendant Charlotte Lapper for entrusting a dangerous instrumentality, a go-kart, to Defendant C.S. despite knowing that C.S. intended to operate the go-kart in an unsafe manner. See Amended Complaint at 8-14.
On March 21, 2014, Defendant Adventure Racing moved this Court for summary judgment dismissing Plaintiff's complaint based on the doctrine of "assumption of the risk" and the Lapper Defendants' cross-claims against it. See Dkt. No. 50, Notice of Motion at 1. On September 12, 2014, the Lapper Defendants moved for summary judgment dismissing all of Plaintiff's claims. See Dkt. No. 78, Notice of Motion at 1. Also on September 12, 2014, Plaintiff moved this Court for summary judgment against "defendant CS [sic] on the issue of liability as a matter of law, on the grounds that, under New York [S]tate substantive law, his operation of the go-kart vehicle constituted negligent conduct that resulted in [P]laintiff's injuries...." See Dkt. No. 82, Notice of Motion at 1.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). At the summary judgment stage, the court's role is to determine "whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In making this determination, the court must view the evidence in the record and draw all reasonable inferences in the light most favorable to the nonmoving party. See Consol. Risk Servs., Inc. v. Auto. Dealers WC Self Ins. Trust, No. 1:06-CV-871, 2010 WL 2735701, *3 (N.D.N.Y. July 9, 2010) (citation omitted).
Summary judgment is appropriate if the party that bears the burden of proof at trial fails to establish an essential element of its case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Moreover, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. Thus, "[c]onclusory allegations, conjecture and speculation... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted).
With this standard in mind, the Court will address each of the summary judgment motions in turn.
A. Defendant Adventure Racing's motion for summary judgment based on Plaintiff's alleged assumption of risk
Under New York law, a person who participates in a sport or recreational activity "consent[s]... to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of the participation." Turcotte v. Fell, 68 N.Y.2d 432, 439 (1986) (citation omitted). This consent operates to relieve other participants in the activity of a duty to use reasonable care; and, absent evidence of "reckless or intentionally harmful conduct, " an action for personal injury will, therefore, be barred as a matter of law. Id. at 437-38. In Turcotte, the New York Court of Appeals explained that the inquiry into whether an individual assumed the risks inherent in a recreational activity "includes consideration of the participant's knowledge and experience in the activity generally." Id. at 440. However, for purposes of determining whether ...