Kremerov v. Forest View Nursing Home, Inc.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Dollard, J.), dated August 19, 2003, which granted the defendant’s motion for leave to amend its answer to include the affirmative defense of assumption of the risk and for summary judgment dismissing the complaint based upon that defense. Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the complaint and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs payable to the plaintiffs. The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was for leave to amend its answer to include the affirmative defense of assumption of risk (see Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]; Sayers v Albicocco, 298 AD2d 572 [2002]; Sidor v Zuhoski, 257 AD2d 564 [1999]). Since the issue of assumption of the risk was addressed by the attorneys during the pretrial depositions, the injured plaintiff, Dora Kremerov (hereinafter the plaintiff), failed to demonstrate that she was prejudiced by the defendant’s delay in making the motion for leave to amend (see Faracy v McGraw Edison Corp., 229 AD2d 463 [1996]; Skinner v Scobbo, 221 AD2d 334 [1995]). [619] However, the Supreme Court erred in granting that branch of the defendant’s motion which was for summary judgment dismissing the complaint as there were triable issues of fact raised by the plaintiffs opposition to the motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Negri v Stop & Shop, 65 NY2d 625 [1985]). The plaintiff was 85 years old at the time of her accident, and had been a registered member of the adult daycare program operated by the defendant Forest View Nursing Home, Inc., for approximately two years. She had no health problems. For social reasons she attended the program and participated in the various activities the defendant offered to its members. As a member of the program, she was familiar with the layout of the premises and voluntarily engaged in numerous recreational activities, including gymnastic exercises, dancing, and swimming. On the date of the plaintiffs accident, one of the recreation coordinators employed by the defendant set up a makeshift bowling alley in the dining hall, complete with bowling-type pins and a rubber “bowling ball” weighing approximately five pounds. He provided the members with general instructions and demonstrated how to perform the bowling activity. The elderly plaintiff, who was born in Ukraine and required the aid of a Russian interpreter, 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 l¼ inches high. Initially, she testified that the heel of her shoe “broke,” she twisted her foot, and fell to the ground. However, upon further questioning she acknowledged that the shoe heel did not break. Rather, she claimed that her accident occurred when her right foot “twisted” inside her shoe. The defendant did not provide the plaintiff or other members with bowling shoes. As part of the general instructions given, the members were advised to wear comfortable shoes for the various recreational activities so as not to slip or fall. Although the defendant’s recreation coordinator, Isaac Pleshtiyev, was not aware of and did not advise the members of any inherent risks associated with bowling, he did consider it a risk to bowl while wearing heeled shoes. Nevertheless, there were no instructions given to the members regarding appropriate footwear on the date of the incident and, contrary to the findings of the Supreme Court, there is nothing in the record to establish that the plaintiff was advised not to wear heeled shoes. The plaintiff testified that she had never experienced any problems with her [620] shoes before this incident. The shoes were closed and the laces were tied. As such, there is nothing to suggest that the plaintiffs shoes did not fit the classification of “comfortable shoes.” The plaintiff contends, inter alia, that the defendant’s negligent failure to advise her that she should not bowl with heeled shoes unreasonably heightened the risk of injury and, as such, was a proximate cause of her injuries. The defendant, in moving for summary judgment, contends that the plaintiff voluntarily participated in the activity offered for the day and, therefore, assumed the risk associated with bowling. In support of its motion, the defendant submitted the affidavit of Ellen Gordon, the program director and a registered nurse, who offered her opinion that there is an inherent risk of injury, including twisting one’s ankle, associated with any recreational activity, including bowling. In opposition, the plaintiff relied on the affidavit of David H. Fried, the President of DEP Accident Analysis, Inc., a sports, recreation, and educational safety analysis and consulting firm. Mr. Fried’s background in physical education and recreation was sufficient to qualify him as an expert (see Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998]; Locilento v Coleman Catholic High School, 134 AD2d 39 [1987]). He opined, inter alia, that the defendant negligently failed to advise and warn the plaintiff of the heightened risk or injury associated with bowling in heeled shoes and, accordingly, considering the plaintiffs novice status, she did not appreciate the risk of injury while bowling in heeled shoes. A voluntary participant in a sporting or recreational activity consents to those commonly-appreciated risks which are inherent in and arise out of the nature of the activity generally, and which flow from such participation (see Morgan v State of New York, 90 NY2d 471, 484 [1997]; Benitez v New York City Bd. of Educ., 73 NY2d 650 [1989]; Leslie v Splish Splash at Adventure-land, 1 AD3d 320 [2003]). Participants, however, do not assume risks which have been unreasonably increased or concealed over and above the usual dangers inherent in the activity (see Morgan v State of New York, supra at 485; Benitez v New York City Bd. of Educ., supra at 657-658; Muniz v Warwick School Dist., 293 AD2d 724 [2002]). Awareness of the risk is “ ‘to be assessed against the background of the skill and experience of the particular plaintiff ” (Morgan v State of New York, supra at 486, quoting Maddox v City of New York, 66 NY2d 270, 278 [1985]). Here, the evidence submitted by the defendant in support of its motion conflicted with its position that the plaintiff fully comprehended the risks involved in the bowling activity. Mr. [621] Pleshtiyev, the recreation coordinator supervising the plaintiffs activities at the time of her injury, testified that he was not aware of any risks inherent in bowling but that he did consider it a risk to bowl while wearing heeled shoes. Ms. Gordon, on the other hand, opined that the risk of twisting one’s ankle is inherent in this and other recreational activities. It was disingenuous for the defendant to suggest that the plaintiff, elderly and a novice, should be charged with knowledge and assumption of a risk about which the defendant’s experienced employees are in disagreement. In light of this conflict in the proof submitted in support of the motion, the defendant failed to establish its prima facie entitlement to summary judgment (see Clark v Chau Shing Wong, 293 AD2d 640 [2002]). Even assuming that the risk of twisting her ankle .and falling while bowling was within the realm of common human experience and should have been appreciated by the injured plaintiff, Mr. Fried’s affidavit supports the plaintiff’s contention that she was not, but should have been, warned and instructed about an enhanced risk, known to Mr. Pleshtiyev, of bowling in heeled shoes (see Driever v Spackenkill Union Free School Dist., 20 AD3d 384 [2005] [question of fact existed as to whether coach should have intervened to prohibit cheerleading stunt in light of known enhanced danger]; Baker v Briarcliff School Dist., 205 AD2d 652 [1994] [question of fact existed as to whether coach adequately warned players of enhanced risks in not wearing proper gear]). The defendant submitted no evidence to suggest that the plaintiff had the requisite knowledge or experience to comprehend or appreciate the heightened risk of injury from bowling in heeled shoes about which Mr. Pleshtiyev and Mr. Fried are in agreement. Since there are triable issues of fact, the Supreme Court erred in granting the defendant’s motion for summary judgment (see Hubbard v East Meadow Union Free School Dist., 277 AD2d 353 [2000] [summary judgment was improperly granted in light of question of fact as to whether supervising coach failed to direct players to use proper gear increased risk of injury]). Crane, J.P., Skelos, and Lifson, JJ., concur.