        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1201
CA 16-00423
PRESENT: CENTRA, J.P., CARNI, NEMOYER, AND CURRAN, JJ.


TRAVIS BUTCHELLO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MICHAEL J. HERBERGER, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (MICHAEL J. CHMIEL OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANCIS M. LETRO, BUFFALO (RONALD J. WRIGHT OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered December 22, 2015. The order denied the motion
of defendant Michael J. Herberger for summary judgment dismissing the
complaint against him.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint is dismissed against defendant Michael J. Herberger.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained while playing in an intercollegiate junior
varsity football game. In his complaint, plaintiff alleged, inter
alia, negligent and/or reckless conduct on the part of the college
that fielded the opposing team, that team’s coach, and Michael J.
Herberger (defendant), the opposition player who allegedly injured
plaintiff. Defendant moved for summary judgment dismissing the
complaint against him on the ground that plaintiff assumed the risk of
his injury as a matter of law. Supreme Court denied the motion, and
we now reverse.

     “As a general rule, participants properly may be held to have
consented, by their participation, to those injury-causing events
which are known, apparent or reasonably foreseeable consequences of
the participation” (Turcotte v Fell, 68 NY2d 432, 439, citing Maddox v
City of New York, 66 NY2d 270, 277-278). Whether a plaintiff should
be deemed to have made an informed estimate of the risks involved in
an activity before deciding to participate depends upon the openness
and obviousness of the risk, the plaintiff’s background, skill and
experience, the plaintiff’s own conduct under the circumstances, and
the nature of the defendant’s conduct (see Morgan v State of New York,
90 NY2d 471, 485-486). To establish a plaintiff’s assumption of the
                                 -2-                          1201
                                                         CA 16-00423

risk, a defendant must show that the plaintiff was generally aware of
the risk that befell him, but it is not necessary to demonstrate that
the plaintiff foresaw the exact manner in which his injury occurred
(see Maddox, 66 NY2d at 278; Lamey v Foley, 188 AD2d 157, 164).

     We agree with defendant that plaintiff’s action is barred by the
doctrine of primary assumption of the risk and that the court thus
erred in denying the motion. Defendant sustained his burden on the
motion of demonstrating that plaintiff, an experienced football
player, voluntarily assumed the risk of the injury by participating in
the game (see Benitez v New York City Bd. of Educ., 73 NY2d 650, 657-
659; Serrell v Connetquot Cent. Sch. Dist. of Islip, 19 AD3d 683, 683-
684; see also Hagon v Northport-East Northport Union Free Sch. Dist.
No. 4, 273 AD2d 441, 441). In opposition to the motion, plaintiff
failed to raise a triable issue of fact concerning whether he was
subjected to a concealed or unseasonably increased risk (see Serrell,
19 AD3d at 683-684; Hagon, 273 AD2d at 441-442), or one that was
otherwise not inherent in the sport (see Cole v New York Racing Assn.,
24 AD2d 993, 994, affd 17 NY2d 761; see generally Benitez, 73 NY2d at
659). Moreover, plaintiff failed to raise a triable issue of fact on
his claim that defendant’s conduct was a “flagrant infraction[ of the
rules of the sport] unrelated to the normal method of playing the game
and . . . without any competitive purpose” (Turcotte, 68 NY2d at 441;
see Barton v Hapeman, 251 AD2d 1052, 1052; cf. Kramer v Arbore, 309
AD2d 1208, 1209; Keicher v Town of Hamburg, 291 AD2d 920, 920-921).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
