Abato v. County of Nassau

Dillon, J. (concurring in the result and voting to affirm the order appealed from, with the following memorandum):

I concur with the result reached by my colleagues to affirm, but for an entirely different reason. In my view, the appellants’ submissions established their prima facie entitlement to judgment as a matter of law based upon primary assumption of the risk. In opposition, however, the plaintiffs raised an issue of fact that requires a trial. The dispositive issue is not one of foreseeability, which is relied upon by the majority, but is, instead, one of the “aware[ness] of the potential for injury of the mechanism from which the injury results” (Maddox v City of New York, 66 NY2d 270, 278 [1985]). Here, the plaintiff Patricia J. Abato (hereinafter the plaintiff) testified at her deposition that she did not know that T-shirts would be shot into the stands and had never attended previous sporting events where that had occurred. Thus, there is a question of fact as to whether the plaintiff was ever aware, in the first instance, of the risk that the appellants claim she had assumed (see Lamey v Foley, 188 AD2d 157, 164 [1993]). Unlike being struck by an errant hockey puck, which is a known and objective inherent risk for spectators of the sport of ice hockey, the appellants’ shooting of T-shirts over a glass barrier into the stands does not, in my view, create risks that are known and inherent in the sport (see Morgan v State of New York, 90 NY2d 471, 488 [1997] [torn tennis net not an inherent *1270risk of the sport as a matter of law for summary judgment purposes]; Lamey v Foley, 188 AD2d at 164).