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

335
CA 14-01705
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


JILL SAVAGE AND CRAIG SAVAGE,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

KAREN BROWN, TRACY BROWN,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (RYON D. FLEMING OF
COUNSEL), FOR DEFENDANT-APPELLANT KAREN BROWN.

CHELUS HERDZIK SPEYER & MONTE, P.C., BUFFALO (KATIE L. RENDA OF
COUNSEL), FOR DEFENDANT-APPELLANT TRACY BROWN.

SCHNITTER CICCARELLI MILLS PLLC, EAST AMHERST (BRITTANY A. NASRADINAJ
OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeals from an order of the Supreme Court, Erie County (Penny M.
Wolfgang, J.), entered April 15, 2014. The order, inter alia, denied
the motions of defendants Karen Brown and Tracy Brown for summary
judgment dismissing the complaint against them.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she sustained when she was struck in the legs by a sled on
property owned by defendants Karen Brown, Patrick Walsh and Holly
Walsh (property owners). Defendant Tracy Brown, Karen’s daughter, was
on the sled with another person when it struck plaintiff. With the
consent of the property owners, Tracy held a birthday party for
herself at the property and invited approximately 15 guests, including
plaintiff, who were informed that people would be sledding at the
party. At the time of the accident, plaintiff was standing on the
side of the hill watching the sledding. Following joinder of issue
and discovery, Tracy and the property owners moved separately for
summary judgment dismissing the complaint against them based on the
doctrine of assumption of the risk. The property owners contended in
the alternative that they are entitled to immunity under General
Obligations Law § 9-103. We conclude that Supreme Court erred in
denying the motions.
                                 -2-                           335
                                                         CA 14-01705

     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). The doctrine does not, however, shield
defendants from liability for exposing participants to unreasonably
increased risks of injury (see Sheehan v Hicksville Union Free Sch.
Dist., 229 AD2d 1026, 1026). To establish the defense, “a defendant
must show that [the] plaintiff was aware of the defective or dangerous
condition and the resultant risk, although it is not necessary to
demonstrate that [the] plaintiff foresaw the exact manner in which his
[or her] injury occurred” (Lamey v Foley, 188 AD2d 157, 164, citing
Maddox v City of New York, 66 NY2d 270, 278). As defendants correctly
note, “ ‘[i]n a suit against participants in [an applicable activity],
a spectator generally will be held to have assumed the risks inherent
in the [activity], including the specific risk of being struck’ ”
(Kreil v County of Niagara, 8 AD3d 1001, 1002; see Roberts v Boys &
Girls Republic, Inc., 51 AD3d 246, 247-248, affd 10 NY3d 889; Muller v
Spencerport Cent. Sch. Dist., 55 AD3d 1388, 1388; Procopio v Town of
Saugerties, 20 AD3d 860, 861, lv denied 5 NY3d 716). For instance, it
has been held that a spectator at a baseball game assumes the risk of
being struck by a foul ball (see Koenig v Town of Huntington, 10 AD3d
632, 632-633).

     Here, we similarly conclude that, by standing on the side of the
hill while watching other people sledding, plaintiff assumed the risk
of being struck by a sled. Plaintiff testified at her deposition that
she had been sledding earlier in the day, and that she knew that the
sleds went “fast, very, very fast” on that hill. Moreover, earlier in
the day plaintiff observed someone else at the party lose control of
her sled and crash into a snow bank, and she saw a sled strike another
person. Plaintiff’s sole argument in opposition to the motions was
that she did not assume the risk of being struck by a sled because she
was standing off to the side of the hill in an area where sleds were
unlikely to go. That argument, however, is belied by plaintiff’s
deposition testimony that the sled was going straight down the hill
“until the very end,” and that she did “not even have a split second
to react.”

     In light of our determination that the motions must be granted
based on the doctrine of assumption of the risk, we need not address
the property owners’ alternative contention that they are immune from
liability under General Obligations Law § 9-103.




Entered:   May 1, 2015                          Frances E. Cafarell
                                                Clerk of the Court
