SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1154
CA 16-00489
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND SCUDDER, JJ.
BARBARA KIRBY, PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
DRUMLINS, INC., DEFENDANT-RESPONDENT,
ET AL., DEFENDANT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KEVIN E. HULSLANDER
OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LAW OFFICES OF THERESA J. PULEO, SYRACUSE (MICHELLE M. DAVOLI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Onondaga County
(Anthony J. Paris, J.), entered November 30, 2015. The order, insofar
as appealed from, granted that part of defendants’ motion for summary
judgment dismissing the amended complaint against defendant Drumlins,
Inc.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages
for injuries that she sustained when she was thrown from her golf cart
while playing golf at defendants’ golf course. According to
plaintiff, she was driving the golf cart down an excessively steep and
winding cart path that was littered with wet leaves and other natural
debris when she lost control of her cart and was injured.
We conclude that Supreme Court properly granted that part of
defendants’ motion for summary judgment dismissing the amended
complaint against Drumlins, Inc. (defendant) on the ground that
plaintiff had assumed the risk of her injuries as a matter of law.
The doctrine of primary assumption of the risk acts as a complete bar
to recovery where a plaintiff is injured in the course of a sporting
or recreational activity through a risk inherent in that activity (see
Turcotte v Fell, 68 NY2d 432, 438-439). “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”
(id. at 439, citing Maddox v City of New York, 66 NY2d 270, 277-278).
“ ‘It is not necessary to the application of assumption of [the] 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
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CA 16-00489
for injury of the mechanism from which the injury results’ ” (Yargeau
v Lasertron, 128 AD3d 1369, 1371, lv denied 26 NY3d 902, quoting
Maddox, 66 NY2d at 278). “The doctrine of primary assumption of the
risk, however, will not serve as a bar to liability if the risk is
unassumed, concealed, or unreasonably increased” (Ribaudo v LaSalle
Inst., 45 AD3d 556, 557, lv denied 10 NY3d 717).
Here, defendants established on the motion that plaintiff was an
experienced golfer who had played that hole and driven that cart path
several times previously. Apart from her familiarity with the steep
topography of the hole, plaintiff was aware that it had rained the
night before and that the course was still wet that morning. She had
driven her golf cart on that cart path just moments before her
accident, and further had observed the leaves and berries on the cart
path as she began down the cart path. It is common knowledge that
leaves and other natural litter may be present on a golf course and
that such litter may become slick when it is wet (see generally
Maddox, 66 NY2d at 278). For those reasons, we conclude that
plaintiff was aware of the risk posed by the cart path and assumed it
(see Bryant v Town of Brookhaven, 135 AD3d 801, 802-803; Mangan v
Engineer’s Country Club, Inc., 79 AD3d 706, 706; Lombardo v Cedar
Brook Golf & Tennis Club, Inc., 39 AD3d 818, 819; Bockelmann v New
Paltz Golf Course, 284 AD2d 783, 784, lv denied 97 NY2d 602).
We further conclude that the court did not err in refusing to
consider the conclusory affidavit of plaintiff’s expert in golf course
design in opposition to the motion. The affidavit set forth none of
the industry standards to which it alluded (see Barbato v Hollow Hills
Country Club, 14 AD3d 522, 523), and it provided no specific
measurements taken at the scene to which such industry standards might
have been compared. The affidavit thus lacked probative value (see
Costanzo v County of Chautauqua, 108 AD3d 1133, 1133-1134).
Entered: December 23, 2016 Frances E. Cafarell
Clerk of the Court