         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1484
CA 10-01081
PRESENT: MARTOCHE, J.P., SMITH, FAHEY, PERADOTTO, AND GREEN, JJ.


ROBIN CUSTODI AND JOHN CUSTODI,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF AMHERST, ET AL., DEFENDANTS,
PETER MUFFOLETTO AND SUSAN MUFFOLETTO,
DEFENDANTS-RESPONDENTS.


ANDREWS, BERNSTEIN & MARANTO, LLP, BUFFALO (ROBERT J. MARANTO, JR., OF
COUNSEL), FOR PLAINTIFFS-APPELLANTS.

WATSON, BENNETT, COLLIGAN & SCHECHTER, LLP, BUFFALO (JOEL B. SCHECHTER
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Paula L.
Feroleto, J.), entered February 24, 2010 in a personal injury action.
The order granted the motion of defendants Peter Muffoletto and Susan
Muffoletto for summary judgment dismissing plaintiffs’ complaint
against them.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs, the motion is denied and the complaint
against defendants Peter Muffoletto and Susan Muffoletto is
reinstated.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Robin Custodi (plaintiff) while rollerblading on
Countryside Lane in defendant Town of Amherst. Plaintiff allegedly
tripped over a two-inch height differential between the apron at the
end of a driveway owned by Peter Muffoletto and Susan Muffoletto
(defendants) and a culvert or “C curb” (hereafter, curb) that
separated the driveway from the public roadway. We agree with
plaintiffs that Supreme Court erred in granting the motion of
defendants seeking summary judgment dismissing the complaint against
them based on the doctrine of primary assumption of the risk. “Under
[that] doctrine . . ., a person who voluntarily participates in a
sporting activity generally consents, by his or her participation, to
those injury-causing events, conditions[] and risks [that] are
inherent in the activity” (Cotty v Town of Southampton, 64 AD3d 251,
253; see generally Morgan v State of New York, 90 NY2d 471, 483-486;
Turcotte v Fell, 68 NY2d 432, 438-440). The policy underlying the
doctrine of primary assumption of the risk is “to facilitate free and
vigorous participation in athletic activities” (Benitez v New York
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                                                         CA 10-01081

City Bd. of Educ., 73 NY2d 650, 657; see Anand v Kapoor, 61 AD3d 787,
792, affd ___ NY3d ___ [Dec. 21, 2010]). The Court of Appeals has
emphasized “that athletic and recreative activities possess enormous
social value, even while they involve significantly heightened risks[]
and [that the Court has] employed the notion that [the] risks may be
voluntarily assumed to preserve [those] beneficial pursuits as against
the prohibitive liability to which they would otherwise give rise.
[The Court has] not applied the doctrine outside of [that] limited
context[,] and it is clear that its application must be closely
circumscribed if it is not seriously to undermine and displace the
principles of comparative causation” (Trupia v Lake George Cent.
School Dist., 14 NY3d 392, 395 [emphasis added]).

     We conclude that, under the circumstances of this case, the
doctrine of primary assumption of the risk does not apply to the
activity in which plaintiff was engaged at the time of her injury (see
Lauricella v Friol, 46 AD3d 1459). On the day of the accident,
plaintiff was rollerblading along Countryside Lane when she
encountered an ice cream truck that had stopped in the roadway. To
avoid the truck, plaintiff rollerbladed onto the sidewalk and
thereafter attempted to re-enter the roadway using defendants’
driveway. As she rollerbladed down the driveway, plaintiff looked to
her left and to her right for oncoming traffic. Her foot then struck
or caught something, and she tripped and fell at the edge of
defendants’ driveway. The evidence submitted by defendants in support
of their motion established that plaintiff was an experienced
rollerblader and that she was aware that tripping and falling are
risks inherent in the activity, which are increased when rollerblading
on uneven surfaces such as sidewalks. Defendants also submitted
evidence, however, establishing that plaintiff had not rollerbladed on
Countryside Lane prior to the date of the accident, that she did not
observe the height differential between defendants’ driveway apron and
the curb prior to falling and that, in her prior rollerblading
experience, she had not encountered a height differential of similar
dimension. Thus, it cannot be said that the height differential
between defendants’ driveway apron and the curb was a “known, apparent
or reasonably foreseeable consequence[]” of rollerblading on a paved
roadway, sidewalk, or driveway (Turcotte, 68 NY2d at 439), nor can it
be said “that plaintiff was aware of the [height differential] and the
resultant risk” presented thereby (Lamey v Foley, 188 AD2d 157, 164).
To the contrary, we conclude that the height differential between
defendants’ driveway apron and the curb “ ‘created a dangerous
condition over and above the usual dangers that are inherent in the
sport’ ” of rollerblading (Morgan, 90 NY2d at 485; see Cotty, 64 AD3d
at 257; see also Trupia, 14 NY3d at 396; Quackenbush v City of
Buffalo, 43 AD3d 1386, 1388-1389; Andrews v County of Onondaga, 298
AD2d 837). In other words, the risk of falling on improperly
maintained premises is not a risk that is inherent in the activity
undertaken by plaintiff in this case (see Weller v Colleges of the
Senecas, 217 AD2d 280, 282-284; see generally Morgan, 90 NY2d at 484).

     We cannot agree with defendants that the height differential
between their driveway apron and the curb was an open and obvious
condition and that they are thereby absolved of liability. It is well
                                 -3-                          1484
                                                         CA 10-01081

settled that “the open and obvious nature of the allegedly dangerous
condition . . . does not negate the duty to maintain [the] premises in
a reasonably safe condition but, [instead], bears only on the injured
person’s comparative fault” (Konopczynski v ADF Constr. Corp., 60 AD3d
1313, 1315 [internal quotation marks omitted]; see Cupo v Karfunkel, 1
AD3d 48, 52). In any event, we conclude that there is a triable issue
of fact whether the height differential was open and obvious (see
Quackenbush, 43 AD3d at 1388-1389; Westbrook v WR Activities-Cabrera
Mkts., 5 AD3d 69, 72).

     We further conclude that there is a triable issue of fact whether
the height differential was a proximate cause of the accident and
plaintiff’s resulting injuries. “ ‘As a general rule, issues of
proximate cause are for the trier of fact’ ” (Bucklaew v Walters, 75
AD3d 1140, 1142). In support of their motion, defendants submitted
the deposition testimony of plaintiff, who testified that, at the time
of the accident, she did not know what caused her to fall. In
opposition to the motion, however, plaintiffs submitted an affidavit
in which plaintiff averred that, prior to entering the roadway, she
felt one of her rollerblades strike something at the end of
defendants’ driveway apron that felt like a change in elevation and
propelled her into the street. Plaintiff further averred that she did
not observe any condition at the site of the accident, other than the
height differential between the driveway apron and the curb, that
could have caused her to fall. Thus, the record contains sufficient
facts from which a factfinder could reasonably infer that the height
differential caused the accident and plaintiff’s resulting injuries
(see Bulman v P & R Enter., 17 AD3d 1139, 1140; see also Belles v
United Church of Warsaw, 66 AD3d 1470).

     We therefore reverse the order, deny the motion and reinstate the
complaint against defendants.

     All concur except MARTOCHE, J.P., and SMITH, J., who dissent and
vote to affirm in the following Memorandum: We agree with Supreme
Court that the doctrine of primary assumption of risk bars plaintiffs’
recovery. We therefore respectfully dissent and would affirm the
order granting the motion of defendants for summary judgment
dismissing the complaint against them.

     Plaintiff, who testified at her deposition that she was an
experienced rollerblader whose skill level was “between intermediate
and advanced,” was rollerblading in the street near defendants’ house.
An ice cream truck blocked plaintiff’s path and, although plaintiff
was aware that the sidewalk was “bumpier” than the street, with cracks
and elevation differentials between the concrete slabs, she chose to
rollerblade on the sidewalk instead of crossing the street or waiting
for the truck to move. As she re-entered the street, she fell when
her rollerblade hit a raised lip where defendants’ driveway met the
street.

     “One who takes part in such a sport accepts the dangers that
inhere in it so far as they are obvious and necessary, just as a
fencer accepts the risk of a thrust by his [or her] antagonist or a
                                 -4-                          1484
                                                         CA 10-01081

spectator at a ball game the chance of contact with the ball . . . A
different case would be here if the dangers inherent in the sport were
obscure or unobserved . . ., or so serious as to justify the belief
that precautions of some kind must have been taken to avert them”
(Murphy v Steeplechase Amusement Co., 250 NY 479, 482-483; see Morgan
v State of New York, 90 NY2d 471, 482-483). “Awareness of the risk
assumed is ‘to be assessed against the background of the skill and
experience of the particular plaintiff’ ” (Benitez v New York City Bd.
of Educ., 73 NY2d 650, 657, quoting Maddox v City of New York, 66 NY2d
270, 278). Furthermore, “[i]t is not necessary to the application of
[the doctrine of primary] assumption of risk that the injured
plaintiff have foreseen the exact manner in which his or her injury
occurred, so long as he or she is aware of the potential for injury of
the mechanism from which the injury results” (Maddox, 66 NY2d at 278).

      Here, given plaintiff’s advanced skill level with respect to
rollerblading and the choice of plaintiff to rollerblade on a surface
that she knew to be uneven and bumpy, we conclude that she “assumed
the risks inherent in the sport of roller[]blading, as well as those
arising from the open and obvious condition of the [sidewalk and
driveway] on which [she] was traveling” (Sorice v Captree Homes, 250
AD2d 755; see Mor v Yeshiva Yesode Hatorah Nachlals Yakov, 256 AD2d
393).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
