Jamjyan v West Mtn. Ski Club, Inc.
In this personal injury suit, plaintiff alleged she was injured while snow tubing. The facility moved for summary judgment under the "assumption of risk" doctrine. The Court held that an issue of fact exists at to whether the facility's personnel increased the ordinary level of risk by prematurely unhooking the tube from the tow rope.--LNR
* In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated December 16, 2016. The order denied the defendants' motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with costs.
The plaintiff was injured at a snow tubing park. She commenced this personal injury action against the defendants, the owners and operators of the tubing park, alleging that a tubing park attendant caused the accident by prematurely unhooking the tow rope from the snow tube the plaintiff was sitting in while being towed to the top of the hill. The defendants moved for summary judgment dismissing the complaint on the ground that the action was barred by the doctrine of assumption of risk. The Supreme Court denied the motion, and the defendants appeal.
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was aware of a risk of injury while snow tubing. The doctrine of assumption of risk dictates that "by engaging in a sport or recreational 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 v State of New York, 90 NY2d 471). The assumption of risk doctrine applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on (see Maddox v City of New York, 66 NY2d 270).
However, assumption of risk is not an absolute defense, but a measure of a...