Kremerov v. Forest View Nursing Home, Inc.

Mastro, J., concurs in

part and dissents in part and votes to affirm the order

with the following memorandum: Like the ma-

jority, I discern no improvident exercise of the Supreme Court’s broad discretion in granting the defendant leave to amend its answer to include the affirmative defense of assumption of risk. However, I conclude that the defendant was entitled to summary judgment based upon that defense, and I would affirm the order appealed from.

*622The injured plaintiff, Dora Kremerov (hereinafter the plaintiff), was 85 years old at the time of her accident and had been a registered member of the free adult daycare program at the defendant Forest View Nursing Home, Inc., for approximately two years. She had no health problems, and she attended the program and participated in the various activities that it offered for social reasons. As a member of the program, she was familiar with the layout of the premises and voluntarily engaged in numerous recreational activities, including gymnastic exercise, dancing, and swimming. On the date of the plaintiffs accident, one of the recreation therapists employed by the defendant set up a makeshift bowling alley at the premises, complete with bowling-type pins and a rubber “bowling ball” weighing approximately five pounds. He provided the members, including the plaintiff, with general instructions and a demonstration regarding how to perform the bowling activity. Additionally, on previous occasions, members of the program had been expressly instructed to wear “comfortable” shoes and not to wear “shoes with heels” when engaging in activities offered by the program.

The plaintiff, who claimed that she had never bowled before, rolled her first ball successfully, knocking down some pins. In attempting to roll the ball a second time, she fell into a sitting position and was injured. At the time of her accident, the plaintiff was wearing leather shoes with wide heels that were approximately V-U inches high. Although she initially testified at her deposition that the heel of one shoe broke and caused her to fall, she subsequently corrected herself and explained that her heel did not break. Rather, she claimed that her accident occurred when her right foot simply “twisted” inside her shoe.

Following the commencement of this negligence action to recover damages for the plaintiffs injuries, the defendant moved for leave to amend its answer to assert the defense of primary assumption of risk and, upon that amendment, for summary judgment dismissing the complaint based upon that defense. The Supreme Court correctly granted that motion in its entirety.

It is well settled 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 [such activity] generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Leslie v Splish Splash at Adventureland, 1 AD3d 320 [2003]). Moreover, the participant’s awareness of the risk is “to be assessed against the background of the skill and experience of the particular *623plaintiff” (Maddox v City of New York, 66 NY2d 270, 278 [1985]).

The defendant in this case demonstrated prima facie its entitlement to judgment as a matter of law by establishing that the plaintiff understood and voluntarily assumed the risks inherent in the bowling activity, including the obvious risk of twisting one’s ankle which is common to so many sports and activities (see generally Morgan v State of New York, supra; Milea v Our Lady of Miracles R.C. Church, 290 AD2d 424 [2002]). Indeed, the defendant relied upon the plaintiffs own deposition testimony regarding her voluntary participation in the makeshift bowling activity after witnessing a demonstration of how the activity was to be performed. The defendant further relied upon the deposition of Isaac Pleshtiyev, a recreation therapist employed by the defendant. Mr. Pleshtiyev gave uncontroverted testimony that program participants were instructed to avoid wearing shoes with heels when engaging in recreational activities on the premises. Furthermore, the defendant submitted the affidavit of its adult daycare program director, Ellen Gordon, who, as a registered nurse, articulated what is already obvious to everyone associated with this case, including the injured plaintiff—that the risk of twisting one’s ankle while engaging in any recreational activity involving the use of one’s legs (including the makeshift bowling activity) is inherent in the activity itself.

In this regard, the testimony of Mr. Pleshtiyev was consistent with the affidavit of Ms. Gordon. Read in its proper context, Mr. Pleshtiyev testified that he was not aware of any risks inherent in the activity of bowling in particular, while Ms. Gordon observed that the risk of twisting one’s ankle was one common to bowling, basketball, dancing, and many other activities.

While the plaintiffs produced the affidavit of a sports accident expert in opposition to the motion, that affidavit merely recited in conclusory fashion that the plaintiffs act of engaging in the makeshift bowling activity while wearing low-heeled shoes increased the risk that she would fall, and that a woman of her age who had never bowled before would be unable to comprehend and appreciate the risks inherent in the activity. However, since the expert’s conclusions were based on no empirical, scientific, or medical data or analysis, they were impermissibly speculative and insufficient to defeat the defendant’s motion for summary judgment (see Rochford v City of Yonkers, 12 AD3d 433 [2004]). Moreover, as accurately observed by the Supreme Court, neither the plaintiff’s affidavit nor that of her expert provided any evidence that her choice of footwear proximately *624caused her foot to twist within her shoe. In any event, the record demonstrates that, despite program participants being instructed to the contrary, the plaintiff elected to engage in the activity while wearing heeled shoes, and any purportedly increased risk which may thereby have resulted was attributable to her own conduct rather than that of the defendant. Similarly, the expert’s blithe assertion that someone of the plaintiffs age and experience would be unable to understand the risks of performing this bowling activity in heeled shoes finds no evidentiary support in the record and appears to far exceed the scope and area of his expertise. To the contrary, while the plaintiff testified that she had never engaged in the activity before, she was present when the instructions regarding how to perform the activity were given, she witnessed a demonstration of the activity, and she successfully engaged in the activity at least once before her accident. Moreover, the risk of twisting her ankle and falling clearly was within the realm of common human experience and could be appreciated by the plaintiff, who was an active participant in other activities at the premises and who possessed a wealth of life experience upon which to draw. In this regard, the plaintiff was found medically fit to participate in daycare program activities, and there is no indication in the record that her faculties were in any respect diminished or compromised. Moreover, a reduced level of awareness of risk may not be presumed solely from her status as a senior citizen. Advanced age alone signals neither the loss of common sense nor the abdication of personal responsibility. Thus, the plaintiffs’ reliance upon cases involving infants who lacked the requisite level of experience and sophistication to appreciate the risks inherent in certain activities is misplaced (see e.g. Driever v Spackenkill Union Free School Dist., 20 AD3d 384 [2005]; Hubbard v East Meadow Union Free School Dist., 277 AD2d 353 [2000]; Baker v Briarcliff School Dist., 205 AD2d 652 [1994]). Indeed, all of these cases involved minor student athletes participating in organized team sports with trained coaching staffs. In each matter, the coach allegedly neglected to provide proper instruction as to the activity or as to the use of appropriate protective equipment provided by the school. As such, those cases are manifestly distinguishable from the adult injured plaintiff’s knowing participation in the makeshift recreational activity at issue here.

Accordingly, neither the plaintiff’s own affidavit nor the conclusoiy submission of her expert sufficed to raise a triable issue of fact with respect to the plaintiffs assumption of the risk in this case, or of the existence of any other dangerous or defective condition created by the defendant (see Loewenthal v *625Catskill Funland, 237 AD2d 262 [1997]). The Supreme Court therefore properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint.