Affirmed and Memorandum Opinion filed February 6, 2014.




                                   In The

                   Fourteenth Court of Appeals

                            NO. 14-12-00650-CV

          PAUL Z. POCHRON AND DEBORAH POCHRON, Appellants

                                     V.
                     LAWRENCE S. OLEKSY, Appellee

               On Appeal from the 434th Judicial District Court
                          Fort Bend County, Texas
                   Trial Court Cause No. 08-DCV-164803

                 MEMORANDUM OPINION

      Paul Z. and Deborah Pochron appeal a take-nothing judgment rendered
against them in their personal injury lawsuit against Lawrence S. Oleksy. We
affirm.

                                BACKGROUND

      This case arises out of a snowmobiling accident that occurred in upstate
New York. Paul Pochron, Lawrence Oleksy, Mike Brehm, Scott Buyea, and John
Donovan frequently operated snowmobiles together.        All except Oleksy were
highly experienced snowmobile drivers.

      The five riders departed from Brehm’s sister’s house on February 2, 2007,
and rode during the morning without incident. At some point in the afternoon,
Oleksy passed the rider between himself and Pochron; in so doing, Oleksy ran into
the side of Pochron’s snowmobile. Pochron suffered severe fractures of his tibia
and fibula as a result of the impact.

      Pochron and his wife sued Oleksy, individually and d/b/a Richland
Construction, on June 16, 2008. Paul Pochron sued for damages as a result of
bodily injuries; Deborah Pochron sued for loss of consortium and loss of
household services.      Oleksy filed an unopposed motion for choice-of-law
determination and judicial notice of New York law. The trial court signed an order
determining that New York law would govern the substantive issues of the case.

      A jury trial was held beginning July 26, 2011. The jury found that Oleksy
was negligent, and that his negligence was a proximate cause of Paul Pochron’s
injuries. The jury awarded the following sums to Paul Pochron: (1) $10,000 for
past physical pain and mental anguish; (2) $0 for future physical pain and mental
anguish; (3) $71,000 for past loss of earning capacity; (4) $5,000 in lost future
earning capacity for five years; (5) $0 for past disfigurement; (6) $0 for future
disfigurement; (7) $0 for past physical impairment; (8) $0 for future physical
impairment; and (9) $38,380.76 for medical expenses. The jury also determined
that Deborah Pochron should receive nothing for loss of consortium and loss of
household services.

      The trial court also submitted a separate question addressing the affirmative
defense of “primary assumption of risk” under New York law. Question 7 stated:


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       Voluntary participants in sports or recreational activities consent to
       those commonly appreciated risks which are inherent in and arise out
       of the nature of the activity generally and flow from such
       participation.
       Awareness of the risk is to be assessed against the background of the
       skill and experience of the particular participant. It is not necessary
       for the participant to have foreseen the exact manner in which his
       injury occurred, so long as he is aware of the potential for injury of
       the mechanism from which injury results.
       Participants do not consent to conduct that is reckless, intentional or
       that creates a risk over and above the usual dangers inherent in the
       activity.
       Do you find that Paul Pochron assumed the risk of the occurrence in
       question and consented to that risk by engaging in snowmobiling on
       February 2, 2007?
The jury answered “yes” to Question 7. Oleksy filed a motion asking the trial
court to sign a take-nothing final judgment based on the jury’s “yes” answer to
Question 7. The trial court did so, and the Pochrons now appeal from the trial
court’s take-nothing judgment.

                                          ANALYSIS
       The Pochrons raise ten issues on appeal. Because the tenth issue addressing
the “primary assumption of risk” doctrine is dispositive, we address it first.1

I.     “Primary Assumption of Risk” Doctrine
       In their tenth issue on appeal, the Pochrons attack Question 7 on three
grounds: (1) the trial court erred in allowing the “primary assumption of risk”
question to be included in the jury charge; (2) the trial court erred in failing to
disregard the jury’s “yes” answer to Question 7 because this doctrine “does not and
should not bar recovery where the Defendant engaged in conduct that was
       1
          Issues one through nine focus on the sufficiency of the evidence to support the answers
to a jury question asking whether Oleksy was acting in the course and scope of his employment,
and to jury questions addressing various categories of damages.

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determined by the jury to be negligent;” and (3) the evidence is legally insufficient
to support the jury’s “yes” answer to Question 7.2

       A.     Charge Error

       The Pochrons assert that “the trial court erred in allowing the ‘primary
assumption of risk’ question to be included in the jury charge.” We review a trial
court’s formulation of the jury charge under an abuse of discretion standard. See
Thota v. Young, 366 S.W.3d 678, 693 (Tex. 2012). Because this contention assails
the trial court’s formulation of the jury charge, we look to objections made at the
charge conference.

       The Pochrons preserved two objections to Question 7 during the charge
conference: (1) “primary assumption of risk” is not applicable as a matter of law
because “the snowmobiling that the Plaintiff and Defendant were engaged [in] is
not an activity for which assumption of the risk applies;” and (2) Oleksy’s
“statutory duty to follow the applicable laws relating to the safe operation of his
snowmobile cannot be limited by the primary assumption of risk doctrine.” The
trial court overruled these charge objections.

       Addressing the Pochrons’ first charge objection requires some background
discussion regarding New York law. When the New York legislature enacted the
Civil Practice Law and Rules in 1975, it abolished contributory negligence and
       2
          In response to the Pochrons’ tenth issue on appeal, Oleksy asserts that the Pochrons
waived any argument that the “primary assumption of risk” doctrine does not apply because they
did not oppose Oleksy’s motion for choice-of-law determination and judicial notice of New York
law. See Tex. R. Evid. 202. We reject this waiver contention because the Pochrons do not
contest the application of New York law. Instead, the Pochrons contend that the “primary
assumption of risk” doctrine recognized under New York law does not foreclose recovery under
the specific facts of this case.




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assumption of risk as absolute defenses in favor of comparative risk. See N.Y.
C.P.L.R. 1411 (McKinney 1975). The relevant provision of the Civil Practice Law
and Rules states:

       In any action to recover damages for personal injury, injury to
       property, or wrongful death, the culpable conduct attributable to the
       claimant or to the decedent, including contributory negligence or
       assumption of risk, shall not bar recovery, but the amount of damages
       otherwise recoverable shall be diminished in the proportion which the
       culpable conduct attributable to the claimant or decedent bears to the
       culpable conduct which caused the damages.
Id.

       Despite this provision, New York courts “have held that a limited vestige of
the assumption of the risk doctrine — referred to as ‘primary’ assumption of the
risk — survived the enactment of CPLR 1411 as a defense to tort recovery in cases
involving certain types of athletic or recreational activities.” See Custodi v. Town
of Amherst, 980 N.E.2d 933, 935 (N.Y. 2012). Instead of acting as a complete
defense, “primary assumption of risk” potentially limits the scope of any otherwise
applicable duty to exercise reasonable care. See Trupia ex rel. Trupia v. Lake
George Cent. Sch. Dist., 927 N.E.2d 547, 548-49 (N.Y. 2010).             Under this
approach, a plaintiff who accepts a known risk “negates any duty on the part of the
defendant to safeguard him or her from the risk.” Id. at 548. The “primary
assumption of risk” doctrine applies to recreational activities as well as sporting
activities because such activities have great social value. Custodi, 980 N.E.2d at
935.

       “Primary assumption of risk” applies when a voluntary participant “is aware
of the risks which are inherent in and arise out of the nature of the sport generally
and flow from such participation.” Pantalone v. Talcott, 861 N.Y.S.2d 166, 167
(N.Y. App. Div. 2008). The duty owed in connection with such activities is “a

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duty to exercise care to make the conditions as safe as they appear to be.” Custodi,
980 N.E.2d at 935.     Participants in athletic and recreational activities do not
consent to conduct that is reckless, intentional, or so negligent as to create an
unreasonably increased risk. See id.

      The Pochrons contend that “primary assumption of risk” does not apply in
this case because snowmobiling is not the type of activity covered by the doctrine.
They support this assertion by citing Trupia ex rel. Trupia, 927 N.E.2d at 547.

      In Trupia, an unsupervised eleven-year old boy was injured while sliding
down a bannister at school. Id. at 548. The New York Court of Appeals declined
to apply the “primary assumption of risk” doctrine; it stated that the doctrine “must
be closely circumscribed if it is not seriously to undermine and displace the
principles of comparative causation.” Id. at 547. The court concluded that the
injury-causing activity at issue in that case — horseplay — was not significant
enough to insulate the school district from a breach of duty claim. Id.

      Unlike Trupia, this case does not involve horseplay or children. Instead, the
plaintiff in this case was an adult engaged in snowmobiling. Unlike horseplay, the
“primary assumption of risk” doctrine has been applied to snowmobiling. See
Haider v. Zadrozny, 876 N.Y.S.2d 215, 216 (N.Y. App. Div. 2009) (“[T]he
doctrine of primary assumption of risk completely bars recovery to one who is
injured during his or her voluntary participation in a sport or recreational activity
such as riding upon or being towed behind a snowmobile.”). We conclude that the
doctrine applies in this case, and that a collision with another snowmobile driver is
a risk inherent in snowmobiling. Cf. Zielinski v. Farace, 737 N.Y.S.2d 199, 200
(N.Y. App. Div. 2002) (risk of injury caused by another skier is an inherent risk of
downhill skiing).

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      Turning to the second charge objection, the Pochrons assert that Oleksy’s
“statutory duty to follow the applicable laws relating to the safe operation of his
snowmobile cannot be limited by the ‘primary’ assumption of the risk doctrine.”
See N.Y. PARKS REC. & HIST. PRESERV. § 25.03(2) (McKinney 2006) (It is
unlawful for any person to drive a snowmobile “in a careless, reckless or negligent
manner so as to unreasonably endanger the person or property of another or to
cause injury or damage thereto.”) In other words, the Pochrons contend that if a
defendant violates the New York statute governing the operation of snowmobiles,
then the “primary assumption of risk” doctrine does not apply.

      The Pochrons do not offer and we have not found any case law to support
this contention. To the contrary, New York case law indicates that application of
the “primary assumption of risk” doctrine is not foreclosed if a defendant violates a
New York law concerning snowmobiling. See Pantalone, 861 N.Y.S.2d at 167
(holding that a fact issue existed, requiring a jury to determine the application of
the doctrine of assumption of risk, when a defendant snowmobile driver violated
section 25.03 by speeding).

      For these reasons, we overrule the Pochrons’ tenth issue insofar as it is based
on asserted charge error.

      B.     Materiality of Question 7

      The Pochrons also argue that the trial court erred in failing to disregard the
jury’s “yes” answer to Question 7 because the “primary assumption of risk”
doctrine “does not and should not bar recovery where the Defendant engaged in
conduct that was determined by the jury to be negligent.” We construe this as an
argument that the jury’s “yes” answer to Question 1 as to Oleksy’s negligence
made the jury’s “yes” answer to Question 7 immaterial.           A jury question is

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immaterial when it should not have been submitted, or when it was properly
submitted but has been rendered immaterial by other findings. Spencer v. Eagle
Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994); Soon Phat, L.P. v.
Alvarado, 396 S.W.3d 78, 90 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A
jury question also is considered immaterial when its answer cannot alter the effect
of the verdict. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995).
The Pochrons raised this contention in their motion for judgment notwithstanding
the verdict, which the trial court denied.

      If ordinary negligence forecloses the applicability of “primary assumption of
risk” under New York law, then it is hard to envision a scenario in which “primary
assumption of risk” would continue to be a viable doctrine. See Martin v. Fiutko,
801 N.Y.S.2d 236, 237 (N.Y. Sup. Ct. 2005), aff’d as modified, 811 N.Y.S.2d 250
(N.Y. App. Div. 2006) (“However, if ordinary negligence is included in the
standard to overcome plaintiff’s primary assumption of risk, the court questions
when, if ever, would primary assumption of risk be a complete bar to plaintiff’s
claim?”). New York courts have concluded that ordinary negligence does not
preclude the application of the “primary assumption of risk” doctrine. See Turcotte
v. Fell, 68 N.Y.2d 432, 443, 502 N.E.2d 964, 971 (N.Y. 1986) (Despite
defendant’s violation of a New York law prohibiting foul riding, plaintiff jockey
assumed the risk of being bumped into by a horse during a race or exhibition.);
Anand v. Kapoor, 877 N.Y.S.2d 425, 429 (N.Y. App. Div. 2009) aff’d, 942 N.E.2d
295 (N.Y. 2010). (“[E]ven assuming that the defendant was negligent in failing to
ascertain precisely where the other members of his party were before hitting the
ball, or that they were close enough to the intended line of flight of his ball to
require him to call out a warning, such carelessness does not rise to the level of
creating a dangerous condition over and above the usual dangers inherent in


                                             8
participating in the sport of golf.”). Instead, a plaintiff must demonstrate that the
defendant’s conduct was “reckless, intentional or so negligent as to create an
unreasonably increased risk.” Pantalone, 861 N.Y.S.2d at 167; see also Custodi,
980 N.E.2d at 935 (“[P]articipants are not deemed to have assumed risks resulting
from the reckless or intentional conduct of others, or risks that are concealed or
unreasonably enhanced.”); but see Duncan v. Kelly, 671 N.Y.S.2d 841, 842 (N.Y.
App. Div. 1998) (“[A] recovery by plaintiff may be predicated upon a showing of
ordinary negligence on defendant’s part.”).

      The Pochrons note that the jury charge defined negligence as follows as to
Oleksy:

             “[F]ailure to use ordinary care, that is, failing to do that which a
             person of ordinary prudence would have done under the same or
             similar circumstances or doing that which a person of ordinary
             prudence would not have done under the same or similar
             circumstances;”

             “[O]perating a snowmobile at a rate of speed greater than reasonable
             or proper under the surrounding circumstances provided;” and

             “[O]perating a snowmobile in a careless, reckless, or negligent
             manner, so as [to] unreasonably endanger the person or property of
             another or to cause injury or damage thereto.”

The jury charge also defined ordinary care as the “degree of care that would be
used by a person of ordinary prudence under the same or similar circumstances.”
In light of these definitions, they contend the jury found that Oleksy’s conduct was
reckless when the jury answered “yes” to Question 1; therefore, they contend that
the “primary assumption of risk” doctrine is not applicable to foreclose a claim

                                         9
based on Oleksy’s reckless conduct. See generally Sw. Key Program, Inc. v. Gil-
Perez, 81 S.W.3d 269, 271-72 (Tex. 2002) (surveying liability standards nationally
for sports-related injuries).

      Even if it is assumed for argument’s sake that “reckless” conduct would
foreclose application of “primary assumption of risk” under New York law,
conduct that is negligent because it amounts to a failure to exercise ordinary care
does not. See Anand, 877 N.Y.S.2d at 429; Martin, 801 N.Y.S.2d at 237. We
reject the Pochrons’ contention because the court submitted multiple alternative
theories of negligence without objection in a broad form jury charge. Only one
referenced “reckless” conduct, and the jury was not required to accept that
definition in order to answer “yes” to Question 1. Thus, although the jury charge
contained a definition of negligence that referenced “reckless” conduct, the jury
could have relied on one of the alternative theories of negligence and found that
Oleksy’s conduct amounted to a failure to use ordinary care.

      We conclude that the jury’s “yes” answer to Question 1 as to Oleksy did not
render the jury’s “yes” answer to Question 7 immaterial or make the “primary
assumption of risk” doctrine inapplicable. We reject the Pochrons’ tenth issue
insofar as it is based on the trial court’s asserted error in failing to disregard the
jury’s “yes” answer to Question 7 in light of the “yes” answer to Question 1.

      C.     Sufficiency of the Evidence

      The Pochrons assert in their reply brief that the evidence is legally
insufficient to support the jury’s “yes” answer to Question 7. This complaint is not
preserved for our review because the Pochrons did not raise it in their original
appellate brief. See Tex. R. App. P. 38.3; Priddy v. Rawson, 282 S.W.3d 588, 597
(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (An appellant is not allowed

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to include an issue in a reply brief that was not raised in the appellant’s original
brief.).

       Accordingly, we overrule the Pochrons’ tenth issue.

                                   CONCLUSION

       Because the Pochrons’ tenth issue is dispositive, we need not address their
remaining issues. We affirm the trial court’s judgment.




                                      /s/    William J. Boyce
                                             Justice



Panel consists of Justices Boyce, Christopher, and Brown.




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