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

1302/14
CA 14-00783
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


KURT T. JURGENSEN, AS PARENT AND NATURAL
GUARDIAN OF JAYNA R. JURGENSEN, AN INFANT,
AND KURT T. JURGENSEN, INDIVIDUALLY,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WEBSTER CENTRAL SCHOOL DISTRICT,
DEFENDANT-APPELLANT.


CONGDON, FLAHERTY, O’CALLAGHAN, REID, DONLON, TRAVIS & FISHLINGER,
UNIONDALE (CHRISTINE GASSER OF COUNSEL), FOR DEFENDANT-APPELLANT.

THE PALMIERE LAW FIRM, ROCHESTER (MICHAEL STEINBERG OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (J.
Scott Odorisi, J.), entered December 5, 2013. The order denied
defendant’s motion for summary judgment dismissing plaintiff’s amended
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the amended complaint is dismissed.

     Memorandum: Plaintiff, individually and as parent and natural
guardian of his daughter, commenced this action seeking damages for
injuries sustained by his daughter at high school during a varsity
cheerleading practice. Plaintiff’s daughter (hereafter, daughter) was
injured while working with her teammates on a choreographed stunt that
involved two cheerleaders, referred to as “bases,” throwing
plaintiff’s daughter, the “flyer,” into the air and then catching her
as she came down in a horizontal position. On the day in question,
the daughter and her teammates successfully completed the stunt
without incident on their first attempt. During the second attempt,
however, the daughter felt intense pain in her knee when the bases
threw her into the air. The daughter curled herself into a ball while
airborne, whereupon the two bases caught her and placed her on the
mat. It was later determined that the daughter sustained a torn
anterior cruciate ligament in her knee. According to the daughter,
the injury occurred because one of the bases, i.e., another teammate,
was practicing that day with a sprained ankle, which somehow caused
the teammate to hold on to the daughter’s foot for too long before
throwing the daughter into the air.
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                                                         CA 14-00783

     In his amended complaint, plaintiff alleges that defendant school
district was negligent in allowing the teammate to participate in
practice. Following joinder of issue and discovery, defendant moved
for summary judgment dismissing the amended complaint, contending that
the action is barred by the doctrine of assumption of risk. We
conclude that Supreme Court erred in denying the motion. It is well
settled that, “by engaging in a sport or recreational activity, a
participant consents to those commonly appreciated risks [that] 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 NY2d
471, 484; see Larson v Cuba Rushford Cent. Sch. Dist., 78 AD3d 1687,
1687-1688). We have previously held that cheerleading is the type of
athletic endeavor to which the doctrine of assumption of the risk
applies (see e.g. Williams v Clinton Cent. Sch. Dist., 59 AD3d 938,
938; Sheehan v Hicksville Union Free Sch. Dist., 229 AD2d 1026, 1026).
That doctrine does not, however, shield defendants from liability for
exposing participants to unreasonably increased risks of injury (see
Sheehan, 229 AD2d at 1026).

     Here, although plaintiff acknowledges that his daughter
voluntarily assumed the risks inherent in participating in
cheerleading, he contends that defendant, by negligently allowing the
teammate to practice with an injured ankle, increased the risk of
injury to his daughter, and that his daughter did not voluntarily
assume that concealed risk. The record establishes, however, that the
daughter admittedly was aware that the teammate had injured her ankle
and that she had not been cleared to practice by the trainer.
Moreover, the daughter testified that she practiced the stunt with the
teammate on the day in question before she tore her ACL, and that she
noticed that the base—anchored partially by the teammate—felt “a
little more shaky” than usual. As a result of the “shaky” base, the
daughter asked the teammate if the teammate should continue to
practice on the injured ankle. The daughter further testified that,
although she believed that the teammate was injured and that the
teammate’s ankle made the base shaky, she continued to practice with
the teammate because she “didn’t think it was that big of a deal.”

     We agree with defendant that the daughter’s practicing with the
teammate while knowing that the teammate had an injured ankle is
analogous to a cheerleader practicing without a mat (see Williams, 59
AD3d at 938), or to an athlete playing on a field that is in less than
perfect condition (see Stadelmaier v Town of Tonawanda, 2 AD3d 1369,
1370; see also Trevett v City of Little Falls, 24 AD3d 1197, 1198,
affd 6 NY3d 884, rearg denied 7 NY3d 845). We therefore conclude that
defendant established as a matter of law that this action is barred by
the doctrine of assumption of risk, and plaintiff failed to raise an
issue of fact (see generally Zuckerman v City of New York, 49 NY2d
557, 562).



Entered:   March 20, 2015                       Frances E. Cafarell
                                                Clerk of the Court
