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

85
CA 14-01215
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


BRADY LITZ, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CLINTON CENTRAL SCHOOL DISTRICT, JOHN HUGHES,
IN HIS CAPACITY AS HEAD HOCKEY COACH OF THE
CLINTON HIGH SCHOOL HOCKEY TEAM, ROB HAMELINE,
IN HIS CAPACITY AS ASSISTANT HOCKEY COACH OF
THE CLINTON HIGH SCHOOL HOCKEY TEAM,
MICHAEL MARTINI, DEFENDANTS-RESPONDENTS,
ET AL., DEFENDANTS.


DAVID R. DIODATI, NEW HARTFORD, FOR PLAINTIFF-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS CLINTON CENTRAL SCHOOL DISTRICT, JOHN HUGHES,
IN HIS CAPACITY AS HEAD HOCKEY COACH OF THE CLINTON HIGH SCHOOL HOCKEY
TEAM AND ROB HAMELINE, IN HIS CAPACITY AS ASSISTANT HOCKEY COACH OF
THE CLINTON HIGH SCHOOL HOCKEY TEAM.

SANTACROSE & FRARY, ALBANY (AMANDA GEARY OF COUNSEL), FOR
DEFENDANT-RESPONDENT MICHAEL MARTINI.


     Appeal from an order of the Supreme Court, Oneida County
(Bernadette T. Clark, J.), entered October 21, 2013. The order
granted the motions of defendants Clinton Central School District,
John Hughes, in his capacity as Head Hockey Coach of the Clinton High
School Hockey Team, Rob Hameline, in his capacity as Assistant Hockey
Coach of the Clinton High School Hockey Team and Michael Martini for
summary judgment and dismissed the complaint against those defendants.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained in a locker room following hockey practice.
Plaintiff was walking barefoot toward the shower area when defendant
Michael Martini, one of plaintiff’s teammates, stepped backwards onto
plaintiff’s right foot. Martini was still wearing his hockey skates
at the time of the accident. Defendants Clinton Central School
District, John Hughes, and Rob Hameline (collectively, school district
defendants), and Martini separately moved for summary judgment
dismissing the complaint on the ground that plaintiff had assumed the
risks associated with the sport of hockey. Supreme Court granted the
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motions, and we affirm.

     “The assumption of risk doctrine applies where a consenting
participant in sporting and amusement activities ‘is aware of the
risks; has an appreciation of the nature of the risks; and voluntarily
assumes the risks’ ” (Bukowski v Clarkson Univ., 19 NY3d 353, 356,
quoting Morgan v State of New York, 90 NY2d 471, 484; see Custodi v
Town of Amherst, 20 NY3d 83, 88). By engaging in such an activity, a
participant “consents to those commonly appreciated risks which are
inherent in and arise out of the nature of the sport generally and
flow from such participation” (Morgan, 90 NY2d at 484). “The question
of whether the consent was an informed one includes consideration of
the participant’s knowledge and experience in the activity generally”
(Turcotte v Fell, 68 NY2d 432, 440; see Morgan, 90 NY2d 485-486).

     Initially, we reject plaintiff’s contention that assumption of
the risk does not apply because he was no longer playing hockey at the
time of his injury. It is undisputed that the accident “occurred in a
designated athletic or recreational venue” and that the activity at
issue “was sponsored or otherwise supported by the [school district]
defendant[s]” (Custodi, 20 NY3d at 88). On the date of the accident,
plaintiff was practicing with his high school hockey team at the
Clinton Arena, a municipal athletic and recreational facility. The
accident took place immediately following practice in one of the
arena’s locker rooms, which was designated for the exclusive use of
the high school hockey team (cf. id. at 86, 89). Contrary to the
contention of plaintiff, we conclude that he was still “involved” (id.
at 88), or “participating” (Hawkes v Catatonk Golf Club, 288 AD2d 528,
529), in the sport of hockey at the time of his injury. “[T]he
assumption [of risk] doctrine applies to any facet of the activity
inherent in it” (Maddox v City of New York, 66 NY2d 270, 277 [internal
quotation marks omitted]). Here, plaintiff and his teammates stored
their hockey equipment, including their skates, in the arena locker
room. Plaintiff described his routine as follows: “[G]et there
before practice, get ready and get on the ice before you’re supposed
to be on the ice, get off, . . . , get undressed, shower and make sure
your stuff is hanging up.” Once practice had concluded on the night
of the accident, plaintiff and his teammates “all got off the ice as a
team” and proceeded into the locker room to change out of their
equipment. Martini and another teammate remained on the ice to pick
up the nets and pucks, which took less than 10 minutes. The two
players then headed into the locker room, put away the pucks, and
began getting undressed. Martini was in the process of removing his
equipment when the blade of his skate came into contact with
plaintiff’s foot.

     We conclude that it would be inconsistent with the purpose of the
assumption of the risk doctrine to isolate the moment of injury and
ignore the context of the accident (see generally Prats v Port Auth.
of N.Y. & N.J., 100 NY2d 878, 882). The policy underlying the
assumption of the risk doctrine is to encourage free and vigorous
participation in athletic and recreational pursuits by “shielding co-
participants, activity sponsors or venue owners from ‘potentially
crushing liability’ ” (Custodi, 20 NY3d at 88, quoting Bukowski, 19
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                                                         CA 14-01215

NY3d at 358; see Trupia v Lake George Cent. Sch. Dist., 14 NY3d 392,
395). Here, the school district defendants, “solely by reason of
having sponsored or otherwise supported some risk-laden but socially
valuable voluntary activity[,] ha[ve] been called to account in
damages” (Trupia, 14 NY3d at 396). We therefore conclude that there
is a “suitably compelling policy justification . . . to permit an
assertion of assumption of risk in the present circumstances” (id.).

     The question thus becomes whether plaintiff assumed the risk of
the injury-causing acts at issue. “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, 68 NY2d at
439; see Custodi, 20 NY3d at 88). “[A]wareness of risk is not to be
determined in a vacuum [but] . . . is, rather, to be assessed against
the background of the skill and experience of the particular
plaintiff” (Maddox, 66 NY2d at 278; see Turcotte, 68 NY2d at 440).
“[I]t is not necessary to the application of 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, we agree with the school district defendants and Martini
that they met their burden of establishing that the risk of being
injured by a skate blade is “inherent in the sport” of hockey and that
plaintiff was aware of, appreciated the nature of, and voluntarily
assumed that risk (Turcotte, 68 NY2d at 441; see Bukowski, 19 NY3d at
356; Morales v Beacon City Sch. Dist., 44 AD3d 724, 726), and that
plaintiff failed to raise an issue of fact with respect thereto (see
Zuckerman v City of New York, 49 NY2d 557, 562). At the time of the
accident, plaintiff had been a member of his high school’s varsity
hockey team for three years and had been playing organized hockey for
over a decade. Plaintiff acknowledged that the use of skates with
very sharp edges is part of the sport of hockey, and he testified at
his deposition that he was aware of the need to be careful around
people wearing hockey skates. Notably, plaintiff testified that he
was “always worried” about the possibility of “being stepped on or
something with a hockey skate, just getting cut by the skate”—the
precise mechanism of injury in this case—and he acknowledged that such
a possibility was “part of the sport” of hockey. Although plaintiff
was not aware of any similar incidents at the Clinton Arena, he
testified that “there’s been other injuries with skates in the
[National Hockey League and] other leagues.” Plaintiff further
testified that he was aware that hockey players often wear their
skates into the locker room: “I’ve always known since I was little,
since I started—you know—after practice or a game, you walk in on
skates” (emphasis added). Indeed, the floor of the arena locker room
was rubberized for that very purpose. Plaintiff testified that he
“always” walked around the locker room with bare feet when he did not
have his skates on, and he acknowledged that he was “aware of the need
to be careful walking with people still having skates on in the locker
room.” Defendants therefore established as a matter of law that being
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                                                         CA 14-01215

injured by a wayward blade in the locker room before, during, or
immediately after a game or practice is “within the known, apparent
and foreseeable dangers of the sport” of hockey (Turcotte, 68 NY2d at
441).

     In opposition to the motion, plaintiff failed to raise an issue
of fact with respect to whether defendants “unreasonably increased the
plaintiff’s risk of injury” (Morales, 44 AD3d at 726; see Duffy v
Suffolk County High Sch. Hockey League, 289 AD2d 368, 369). Plaintiff
contends that the risk of injury was unreasonably increased by the
layout of the locker room. Although a participant does not assume
“concealed or unreasonably increased risks” or “unique and . . .
dangerous condition[s] over and above the usual dangers that are
inherent in the sport” (Morgan, 90 NY2d at 485 [internal quotation
marks omitted]), the assumption of risk doctrine extends to “risks
engendered by less than optimal conditions, provided that those
conditions are open and obvious and that the consequently arising
risks are readily appreciable” (Roberts v Boys & Girls Republic, Inc.,
51 AD3d 246, 248, affd 10 NY3d 889; see Bukowski, 19 NY3d at 356;
Martin v State of New York, 64 AD3d 62, 64, lv denied 13 NY3d 706).
Here, the condition of the locker room, while perhaps not ideal, was
open and obvious, and any risks were readily appreciable (see Roberts,
51 AD3d at 248). Thus, the school district defendants “fulfilled
their duty of making the ‘conditions as safe as they appear[ed] to
be’ ” (Bukowski, 19 NY3d at 357, quoting Morgan, 90 NY2d at 484).

     With respect to Martini, plaintiff “failed to present evidence
that [Martini]’s conduct was reckless or intentional” (Wollruch v
Jaekel, 103 AD3d 524, 524). Indeed, plaintiff acknowledged that
Martini was not engaged in horseplay or any other improper conduct at
the time of the accident. Martini did not know that plaintiff was
behind him when he stepped backwards, and plaintiff did nothing to
alert Martini of his presence. As Martini testified at his
deposition, he merely “took the wrong step at the wrong time.”

     In sum, we conclude that plaintiff’s injuries were “simply the
result of a ‘luckless accident’ ” arising from his voluntary
participation in a school-sponsored athletic activity (Bukowski, 19
NY3d at 358, quoting Benitez v New York City Bd. of Educ., 73 NY2d
650, 659), and thus that the court properly dismissed the complaint
against the school district defendants and Martini based on assumption
of the risk.




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