Primary assumption of risk doctrine bars action brought by motocross rider; defendant did not create an unreasonable risk of harm
In Fritz v. Walden Playboys M.C. Inc., 217 A.D.3d 1293, 192 N.Y.S.3d 298 (3d Dep’t 2023) plaintiff, a very experienced motocross rider, was injured when he went off a jump and lost control of his bike after landing in a hole on the track:
Following discovery, Walden moved for summary judgment, arguing, among other things, that plaintiffs’ claims were barred by the primary assumption of risk doctrine. Plaintiffs opposed the motion, arguing, among other things, that defendants created an unreasonable risk of harm by failing to address a hole that developed on the track, which was caused by their negligent grooming of the track with soil that was too dry. Supreme Court denied the motion, and Walden appeals.
Fritz v. Walden Playboys M.C. Inc., 217 A.D.3d 1293, 192 N.Y.S.3d 298 (3d Dep’t 2023)
The Third Department gave a concise summary of primary assumption of risk and the attendant exception:
The primary assumption of risk doctrine provides 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, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]; see Grady v Chenango Val. Cent. Sch. Dist., NY3d , , 2023 NY Slip Op 02142 [2023]). Therefore, ‘[i]f the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty’ (Youmans v Maple Ski Ridge, Inc., 53 AD3d 957, 958, 862 N.Y.S.2d 626 [3d Dept 2008] [internal quotation marks and citation omitted]). Although such consent also extends to ‘suboptimal playing conditions’ that are ‘readily apparent’ to a participant(Bukowski v Clarkson Univ., 19 NY3d 353, 357, 971 N.E.2d 849, 948 N.Y.S.2d 568 [2012]; see Maddox v City of New York, 66 NY2d 270, 274-275, 487 N.E.2d 553, 496 N.Y.S.2d 726 [1985]), ‘[a] participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced’ (Grady v Chenango Val. Cent. Sch. Dist., 2023 NY Slip Op 02142 at *1 [internal quotation marks and citation omitted]; seeThompson v Windham Mtn. Partners, LLC, 161 AD3d 1366, 1366, 75 N.Y.S.3d 701 [3d Dept 2018]). As a result, ‘[w]hen determining whether the doctrine applies, we assess the participant’s knowledge of the dangerous condition and consequent risk against the background of his or her skill and experience.’
Fritz v. Walden Playboys M.C. Inc., 217 A.D.3d 1293, 192 N.Y.S.3d 298 (3d Dep’t 2023)
Plaintiff gave extensive testimony about the condition of the track and the nature of the racing prior to the accident, including that something strange happened on the first test run, and “testified that, although he knew that holes develop and the track deteriorates from other riders, it was unusual for a hole to form that early in the day and that the powdery type of dirt was something “totally different than anything [he has] ever seen there before.”
In support of its motion for summary judgment, defendant:
[P]rovided the testimony of several volunteer club members, who collectively testified that the dirt used in grooming the track came from the pits on the track’s property, that the dirt was not new or different than what is ordinarily used and that the conditions on any motocross track can change every 5 to 10 minutes as a race continues. These points were echoed by Walden’s expert, who submitted an affidavit in support of its motion for summary judgment, averring that motocross is an ‘inherently risky activity’ and riders encounter ‘constantly-changing conditions’ that cannot be entirely prevented because, while imperfect, they are ‘unavoidable’ and even ‘integral to the activity.’ He further stated that the hole that caused Fritz’s accident was “not an unusual condition” on a motocross track, and that the presence of sandy or powdery dirt is not uncommon and ‘within the normal range of variable terrain encountered by motocross riders.’
Fritz v. Walden Playboys M.C. Inc., 217 A.D.3d 1293, 192 N.Y.S.3d 298 (3d Dep’t 2023)
Finding that the moving papers established prima facie entitlement to summary judgment, the Third Department turned to the opposing papers, and carefully analyzed each argument, and the proof supporting each argument, proffered by plaintiff:
Upon such a showing, it was incumbent on plaintiffs ‘to demonstrate facts from which it could be concluded that [Walden] unreasonably enhanced the danger or created conditions which were unique or above those inherent in the activity’ (Connolly v Willard Mtn., Inc., 143 AD3d at 1149 [internal quotation marks, ellipses, brackets and citation omitted]). Although plaintiffs argue that Fritz did not observe the dry soil that defendants used to groom and fill the landing area pothole until after his accident and when he was on the ground, it is clear from the record that Fritz became immediately aware of a condition in that landing area that was ‘strange’ and caused his bike to react ‘funny,’ but, based on his experience and need to “feel the track out,” he went around for another practice lap (see Joseph v New York Racing Assn., 28 AD3d 105, 108, 809 N.Y.S.2d 526 [2d Dept 2006]; see also Maddox v City of New York, 66 NY2d at 274-275; Dobert v State of New York, 8 AD3d 873, 874, 779 N.Y.S.2d 143 [3d Dept 2004]; Cruz v State of New York, 1 AD3d 747, 747, 766 N.Y.S.2d 652 [3d Dept 2003]). Despite that Fritz did not visually observe the dirt or the pothole before his fall, unlike the plaintiffs in Joseph, Maddox, Dobert or Cruz, the record establishes that motocross riders would not typically see a landing area until they are past it — a point stressed by Fritz in this matter, but also in an unrelated matter where he testified that landing areas were “blind” and therefore riders had to rely on flaggers to warn them of a hazard on the ground in the landing area such as a downed bike or rider. As a result of this, Fritz testified at several points in the record that motocross riders had to ‘feel’ out a track and the conditions. This is also what Fritz explained he was doing after his first lap and why he would not just pull off, testifying that he ‘wasn’t really sure . . . what was going on with this section of the track.’ In instances like this, where it is clear that the plaintiff was aware of a condition but nevertheless continued with his or her activity, the doctrine of primary assumption of risk has been applied — including where the defect was partially concealed and not directly observed (see Martin v State of New York, 64 AD3d 62, 65-66, 878 N.Y.S.2d 823 [3d Dept 2009], lv denied 13 NY3d 706 [2009]; see also Festa v Apex Capital, LLC, 171 AD3d 1016, 1018, 98 N.Y.S.3d 318 [2d Dept 2019]; Dalton v Adirondack Saddle Tours, Inc., 40 AD3d 1169, 1171, 836 N.Y.S.2d 303 [3d Dept 2007]).
Even though the record is unclear whether Fritz, in recognizing that something strange happened to his bike the first time he landed the jump, was specifically aware that his bike’s reaction was due to the dry soil filling the pothole, ‘it is not necessary to the application of the doctrine that the injured plaintiff may have foreseen the exact manner in which the injury occurred so long as he or she is aware of the potential for injury of the mechanism from which the injury results’ (Joseph v New York Racing Assn., 28 AD3d at 108 [internal quotation marks and citation omitted]; see Martin v State of New York, 64 AD3d at 65-66). Considering that Fritz testified that on both jump landings the back end of his bike ‘kicked up,’ that he hit the same pothole and that he had to work to recover the bike, we are satisfied that he was aware of the potential for injury on that jump’s landing (see Maddox v City of New York, 66 NY2d at 278-279; Joseph v New York Racing Assn., 28 AD3d at 108; Papa v Russo, 279 AD2d 744, 745, 719 N.Y.S.2d 723 [3d Dept 2001], lv denied 99 NY2d 507 [2003]). For this reason, we also reject Fritz’s conflicting testimony that it was not customary for there to be a hole in a landing area, because he also testified that he had experienced them before — including on the first lap’s landing — and that ruts and bumps were what gave a motocross track character, thereby further establishing that such holes were inherent to the sport (see Festa v Apex Capital, LLC, 171 AD3d at 1018; Dalton v Adirondack Saddle Tours, Inc., 40 AD3d at 1171).
To the further extent that Fritz challenges Walden’s use of the dry, talcum powder-like soil, his affidavit in opposition narrowly claims that he previously told Walden that he would not use such soil on his track. However, this narrow position did not rebut the opinion by Walden’s expert that the soil was within the range of normal soil conditions to be expected on a motocross track or otherwise offer evidence that such dry soil was inappropriate in this scenario or as an industry standard (see generally Martin v State of New York, 64 AD3d at 66; Youmans v Maple Ski Ridge, Inc., 53 AD3d at 960). Furthermore, despite taking issue with defendants’ use of this soil and their grooming, Fritz also conceded in the unrelated matter that ‘[t]here’s no exact recipe to grooming a track’ and that, indeed, the purpose of grooming was to soften the dirt on the top layer, which is better than a hard pack for riding. These conclusory and conflicting statements by Fritz were insufficient to create an issue of fact (see Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 821, 839 N.Y.S.2d 183 [2d Dept 2007], lv denied 9 NY3d 817 [2008]; see also Valenti v Exxon Mobil Corp., 50 AD3d 1382, 1384, 857 N.Y.S.2d 745 [3d Dept 2008]). Moreover, plaintiffs’ attorney-drafted CPLR expert disclosure response was not evidentiary proof in admissible form sufficient to defeat a motion for summary judgment (see Bacani v Rosenberg, 114 AD3d 454, 455, 979 N.Y.S.2d 584 [1st Dept 2014]; Velasco v Green-Wood Cemetery, 48 AD3d 271, 272, 852 N.Y.S.2d 74 [1st Dept 2008]; Peris v Western Regional Off-Track Betting Corp., 255 AD2d 899, 899-900, 680 N.Y.S.2d 346 [4th Dept 1998]). Accordingly, because plaintiffs did not raise an issue of fact as to whether Walden concealed or unreasonably increased the risks to which Fritz was exposed, Walden’s motion should have been granted (see Grady v Chenango Val. Cent. Sch. Dist., 2023 NY Slip Op 02142 at *2; Martin v State of New York, 64 AD3d at 66; Joseph v New York Racing Assn., 28 AD3d at 114; see also Bukowski v Clarkson Univ., 19 NY3d at 358; Legac v South Glens Falls Cent. School Dist., 150 AD3d 1582, 1585, 52 N.Y.S.3d 750 [3d Dept 2017], lv denied 30 NY3d 905 [2017]; Schorpp v Oak Mtn., LLC, 143 AD3d 1136, 1137-1138, 39 N.Y.S.3d 296 [3d Dept 2016]).
Fritz v. Walden Playboys M.C. Inc., 217 A.D.3d 1293, 192 N.Y.S.3d 298 (3d Dep’t 2023)
Decision Date: June 29, 2023
Practical Practice Point
A detailed analysis of the most recent Court of Appeals decision on assumption of risk in the sports context, Grady v. Chenago Valley Central School District, 2021 NY Slip Op 00468 (3d Dept. 2021), is set forth in our article in the NYLJ titled “Assumption of Risk Doctrine in Sports: Hold or Fold?”
As for the proof offered in opposition, the Third Department’s analysis requires no supplementation.
However, it is worth highlighting the factors that tilted the playing field in defendant’s favor. Critically, there were important concessions, either outright or a result of contradictions in plaintiff’s testimony, that supported the application of the primary assumption of risk doctrine. Plaintiff’s failure to offer an expert affidavit to oppose defendant’s expert is difficult to understand, especially in light of the fact that plaintiff apparently had an expert, as evidenced by the CPLR 3101(d)(1)(i) exchange submitted in opposition to the motion. Of course, plaintiff’s “attorney-drafted” expert exchange was not, the Court highlights, “evidentiary proof in admissible form sufficient to defeat a motion for summary judgment.”