In Kats-Kagan v City of New York, the Appellate Division, Second Department held (in a May 7, 2014 decision) that an ice skater’s personal injury suit should not have been dismissed as against the City of New York.
The plaintiff, an experienced ice skater, allegedly was injured while ice skating at a rink owned by the defendant City of New York. She testified at her deposition that a uniformed employee, who was skating around the rink in the wrong direction in a “zigzag,” suddenly made a “loop” and extended his leg, bringing his skate into contact with the front of the plaintiff’s left leg, causing her to trip and fall.
Generally, “[v]oluntary participants in a sport or recreational activity 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.” However, “[a]lthough collisions between skaters are a common occurrence, and thus an inherent risk to ice skating … participants do not consent to acts which are reckless or intentional …, or to any unassumed, concealed or unreasonably increased risks.”
Applying this standard, the court held that the City failed to establish its prima facie entitlement to summary judgment:
Here, the evidence submitted by the City in support of its motion failed to establish as a matter of law that the injury-causing event was a known, apparent, or reasonably foreseeable consequence of the plaintiff’s participation in the sport. The City’s submissions raised questions of fact as to whether the conduct of its employee, the skating guard who allegedly caused the plaintiff’s accident, was reckless or intentional and unreasonably increased the risk of a collision
However, defendant Prospect Park Alliance, Inc. – which had a license with the City to operate a concession stand and a skate rental service at the rink – was properly awarded judgment as a matter of law, as it established “that it did not employ any of the individuals allegedly involved in the accident and was not responsible for maintaining or supervising the ice rink.”