SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU

Transcription

1 ). SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PAUL T ARUS and GRACE T ARUS Plaintiffs -against x JAMES VAN DUYME Defendant x Papers Read on this Motion: Defendant's Notice of Motion Plaintiffs Opposition Defendant's Expert Witness Disclosure MICHELE M. WOODARD TRIAL/IAS Part 18 Index No. : 15634/05 Motion Seq. No. : 01 DECISION & ORDER The defendant, JAMES V AN DUYME, hereinafter referred to as "MR. V AN DUYME", moves by Notice of Motion, pursuant to CPLR for an Order dismissing the plaintiff PAUL TAR US' Complaint. On the afternoon of June 26, 2005 at approximately 4:45 p., PAUL T ARUS, hereinafter referred to as "MR. T ARUS", was operating a 1995 Bombardier Seadoo jet ski in a westbound direction in the waters of Hewlett Bay (see Agus Aff. Exhs. 1 4). At the same time, MR V AN DUYME, was operating a 42 foot Sea-Ray water vessel in an eastbound direction, which bore the name " 1 Love Jo Jo. (Id at Exh. 5). As the jet ski operated by the MR. T ARUS was passing the boat operated by MR. V AN DUYME, the jet ski came into contact with a two to three foot wake created by MR. V AN DUYME' s vessel causing the operator of the jet ski and the jet ski itself to become airborne (Id. As a result, MR. TARUS landed on the steering column of the jet ski sustaining multiple injuries. Police Offcer Danzi was summoned to the scene and filed a report in connection to the subject accident (Id at Exh. 5). The within action was thereafter commenced in September of2005, alleging that MR. TAR US' injuries were the result of negligence on the part of MR. VAN DUYME with regard to the Page 1 of 7

2 operation of his vessel (see Agus Aff. Exh. l). As articulated in the Verified Bill of Pariculars, MR. T ARUS claims that his injuries included a broken pelvis, fractured vertebrae at L-, tear of the colon perneallaceration of the groin, and nerve damage to the groin (see Agus Aff. Exh. 4 at 6). The central contention posited by the defendant is that the plaintiff is barred from recovery under the doctrine of primary assumption of risk. Specifically, defendant argues that MR. T ARUS voluntarily participated in the recreational use of a jet ski, was aware of the inherent risks attendant thereto, and that the injuries sustained were a result of these known risks. In support of these contentions, the defendant argues that the record, as developed, demonstrates that the plaintiff possessed the requisite knowledge to appreciate the dangers inherent in the use of a jet ski inasmuch as he had undergone a boater safety course in April of 2004, for which he received a certificate (see Agus Aff. Exh. 11). Additionally, relying upon MR. T ARUS' Deposition testimony, defendant posits that the record clearly establishes that the plaintiff was experienced in the use a jet ski having used this type of water craft in the summer of2004 on two to four occasions (Id at Exh. 6). Moreover, Counsel points out that on the day of the subject accident, the plaintiff used the jet ski on three occasions, the last of which involved his unfortunate accident (Id). With particular relevance to those risks which commonly attend the use of a jet ski, defendant provides the Affidavit of Robert MacNeil, a licensed United States Coast Guard Captain and Vice President of International Marine Consulting Associates, which is "an association of independent engineers naval architects, and consultants offering technical and legal support to the marine industry (see MacNeil Affdavit at 1). Robert MacNeil, hereinafter referred to as "Mr. MacNeil", avers that he has "extensive marine experience including work as a marine architect and engineer since 1962"and that he is "fully familiar with the operation, navigation and safety related to various types of vessels, including Personal Page 2 of 7

3 , " Watercraft" (Id. at ~2). Mr. MacNeill states he reviewed the documents and testimony relevant to the within matter, and that upon said review... it is in my professional opinion that the injuries suffered by the plaintiff, PAUL TARUS, were results of the inherent risks present in the sport of jet-skiing (Id. at ~ 4). Mr. MacNeill further avers that, with respect to the vessel operated by the defendant wakes of two to three feet are normal and ususal for a boat of the size of ' I Love Jo Jo' traveling at planing speed", and thus the defendant "did not create a unique condition outside of the inherent dangers present in jet-skiing that any layperson should be able to recognize Id. at ~ 9). In opposition to the within application Counsel for the plaintiff argues that there are questions of fact, the existence of which precludes the granting of Summar Judgment. Initially, Counsel argues that the record reveals that there are factual issues particularly with respect to the speed at which MR. T ARUS was operating his vessel. In support of this contention, Counsel relies principally upon paricular sections of the deposition transcripts of Brett and Jil Fordsman. As to the testimony of Brett Fordsman, hereinafter referred to as "Mr. Fordsman, Counsel makes reference to the portion thereof wherein he testified that he noticed a large boat coming eastbound, but it was going a little too fast in the five mile per hour zone (see Levine Aff. Exh. E). With regard to Jil Fordsman, hereinafter referred to as "Mrs. Fordsman, Counsel points to those sections wherein she stated that the defendant' s boat was coming fast "because there was a wake behind him (Id at Exh. F). Counsel additionally posits that there exists questions of fact as to the accuracy of the police report authored by Officer Danzi inasmuch as certain witnesses to the accident were not interviewed, to wit: Mr. and Mrs. Fordsman. As a final opposition argument, Counsel contends that, contrary to the defendant's assertions assumption of the risk does not operate to bar the plaintiff from recovering for personal injuries sustained as a result of the accident. Page 3 of 7

4 Included in the plaintiffs opposition is the Affdavit of John Mulligan, a retiree from the Town of Hempstead who had held the position of Bay Constable for a period of thirt-one (31) years (see Mulligan Aff. at page 1). John Mulligan, hereinafter referred to as "Mr. Mulligan, states that during his tenure he became involved with... the area of the South Shore of Long Island, known as Hewlett Bay" and that he served that area where this accident took place and I became familiar with all parts of it" (Id). With particular respect to the circumstances surrounding the subject accident, Mr. Mullgan opines that "The offending boat did apparently have an excessive wake created by traveling at a speed in excess of 5 miles per hour (Id. at page 2). Mr. Mulligan further posits that "I do not believe that MR. TARUS 'jumped the wake. He was caused to negotiate through the wake (Id). CPLR 1411 and the provisions therein embodied provide the following: In any action to recover damages for personal injur, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of the risk, shall not bar recovery, but the amount of damages otherwse recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages. However, notwithstanding the foregoing, exceptions remain, the effects of which fuction to preclude a plaintiff from recovering damages for personal injuries. Among these exceptions, is the doctrine of primar assumption of risk. As ariculated by the Cour of Appeals in the seminal decision of Turncotte Fell the Court held that "assumption ofthe risk is not an absolute defense but a measure of the defendant's duty of care and thus survives the enactment of the comparative fault statute see Turncotte Fell 68 NY2d 432 (1986). The doctrine functions as a complete bar to recovery when it eliminates the defendant's duty of care owed to the plaintiff see Lamey Foley, 188 AD2d 157 (4th Dept 1993). Page 4 of 7

5 The doctrine provides that when a plaintiff volitionally engages in sporting or recreational activity, he or she consents to the attendant inherent risks which are reasonably foreseeable and naturally flow from such activity, see Maddox City of New York 66 NY2d 270 (1985); Morgan State 90 NY2d 471 (1997). When such risks are suffciently comprehended, the plaintiff has signaled his consent and any duty owed to the plaintiff by the defendant has been fulfilled Turncotte Fell, supra. (AJwareness of the risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skil and experience of the particular plaintiff' see Maddox City of New York, supra. In determining the scope and extent of the duty of care owed to the plaintiff, while knowledge of the inherent risks "plays a role... inherency is the sine qua non, see Morgan State, supra. In order for the doctrine to be applicable and thus function to preclude the plaintiff from recovering damages, it is not necessary that the plaintiff foresee the specific maner by which the injury occured but rather that the plaintiff was "aware of the potential for injury of the mechanism from which the injury results see Maddox City of New York, supra. A plaintiff, however, wil not be deemed to have assumed the risks relative to the negligent conduct of another which conduct enhances and amplifies the risks already inherent in the paricular activity, see Martin Luther 227 AD2d 859 (3d Dept 1996); Jackson Livingston Country Club 55 AD2d (4th Dept 1977). Thus, in determining whether a defendant has violated a duty of care owed to the plaintiff within the context of a sporting or recreational activity, the applicable standard should encompass whether the conditions allegedly caused by any negligent acts on the part of the defendant were unique in nature and if the presence of such actions "created a dangerous condition over and above the usual dangers that are inherent in that sport" see Morgan State, supra quoting Owen R.J S. Safety Equip. 79 NY2d 967, 970 (1992). It is well established that the part moving for Summar Judgment must make a prima facie Page 5 of 7

6 showing of entitlement to Judgment as a matter of law but proffering competent evidence to demonstrate the absence of any material issues of fact see Winegrad New York Univ. Med. Center 64 NY2d 851 (1985). Upon such a showing, the burden thereafter shifts to the nonmoving pary to come forth with suffcient admissible evidence to establish the existence of material issues of fact, the existence of which necessitates a trial of the action see Alavrez Prospect Hospital 68 NY2d 320 (1986). In the matter sub judice the defendant has demonstrated its entitlement to Judgment as a matter of law see Winegrad New York Univ. Med. Center, supra. The MR. T ARUS' Deposition testimony demonstrates that the plaintiff possessed sufficient knowledge to appreciate the dangers inherent in the sport and was experienced in using a jet ski having done so on several occasions during the summer of 2004 and on at least two occasions on the day of the subject accident (see Agus Aff. Exh. 6). Additionally, the plaintiffs expert, Mr. MacNeil, unequivocally opines that conditions surrounding the plaintiffs accident were not unique or "outside of the inherent dangers present in jet-skiing that any layperson should be able to recognize, (MacNeil Affidavit at ~9). In opposition, the plaintiffs have failed to raise a triable issue of fact either with regard to the sufficiency as to the MR. TARUS' awareness of the risks attendant to the use of a jet ski or that the relevant circumstances of the subject accident created a danger that was uncommon unusual see Alavrez Prospect Hospital, supra. As to the scope of the plaintiff s knowledge, while this Cour is cognizant that the record reveals that MR. T ARUS had only been pursuing the sport of jet skiing for what the record reveals to be a period of approximately two summer seasons, a fairly recent Decision from the Court of Appeals appears to indicate that such time is sufficient to impute to the plaintiff the requisite knowledge of the inherent dangers relative to given recreational activity. Specifically, in Marcano City of New York the Court reversed the Appellate Division, First Department and granted the defendant' s motion for Summary Judgment notwithstanding that the plaintiff, who sustained injury after falling from a set of parallel exercise bars, had never used or been Page 6 of 7

7 instructed in the use of such apparatus, and had never observed another individual in the use thereof see Marcano City of New York 99 NY2d 548 (2002). Additionally, the expert Affidavit of Mr. Mulligan, and the statements therein contained, do not rebut the opinions espoused by Mr. MacNeill and do not in any regard expound upon those dangers which naturally co-exist with the sport of jet skiing. Mr. Mulligan s speculative conclusions that the plaintiff did not 'jump the wake" but was "caused to negotiate through the wake, are not in any respect probative as to whether the two to three foot wake created by the defendant' s passing vessel was a condition "over and above the usual dangers inherent in that sport" see Morgan State, supra quoting Owen S. Safety Equip., supra. Based upon the foregoing, the motion by the defendant seeking an Order granting Summar Judgment and dismissing the plaintiffs' Complaint is hereby GRANTED. This constitutes the DECISION and ORDER of this Court. DATED: April 13, 2007 Mineola, N. ENTER: HON. MICHELE M. WOODARD ENTERED; APR " "'U COUNTY.. 8L'SGIlIOE Page 7 of 7