Ziegelmeyer v. United States Olympic Committee

Carpinello, J. Appeal from an order of the Supreme Court (Spargo, J.), entered December 6, 2004 in Greene County, which granted defendants’ motions for summary judgment. Flaintiff, a self professed “very experienced and highly proficient” speedskater and two-time Olympic medal winner, was practicing at the 1980 Olympic indoor rink in the Village of Lake Flacid, Essex County, when she fell on the ice, hit the fiberglass boards surrounding the rink and injured her spine. Although pads had been placed on the boards, plaintiff fell in such a manner that her feet lifted them up causing her hip to strike the boards directly. She asserts in this negligence action that certain defendants are liable for her injuries based upon their failure to install the pads in accordance with applicable international standards.1 After discovery, Supreme Court granted defendants’ motions for summary judgment and dismissed the complaint, finding that plaintiff had assumed the risk of her injury. Flaintiff appeals. An athlete who voluntarily participates in a sport “consents to those commonly appreciated risks which are inherent in and [1020] arise out of the nature of the sport generally and. flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]). The “duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 439 [1986] [citations omitted]). “[I]t is not necessary that the injured plaintiff foresee the exact manner in which . . . her injury occurred” (Tremblay v West Experience, 296 AD2d 780, 781 [2002]). Moreover, “a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport” (Maddox v City of New York, 66 NY2d 270, 278 [1985]). In an effort to avoid application of the assumption of risk doctrine, plaintiff relies on the principle that a damaged or dangerous safety feature is not an inherent risk of a sport (see Morgan v State of New York, supra at 488). This record does not establish that the pads were either damaged or defective. No factual affidavit was submitted by plaintiff disputing the affidavit of a fellow speedskater and coach to the effect that falling speedskaters often strike the pads in such a fashion as to cause the pads to move out of position on impact. Even acknowledging the conflicting accounts as to the method by which the pads were affixed to the boards, in the absence of a denial that the pads can move in the fashion in which this accident occurred,2 we cannot say that the subject pads were defective or dangerous such that plaintiffs accident was anything other than an inherent risk of her sport. In light of our ruling, defendants’ alternative arguments for affirmance are academic. Mercure and Mugglin, JJ., concur. Footnotes [1] Plaintiff was acutely aware of the manner in which the pads were affixed to the boards during these practice sessions since she herself had participated in that very process on prior occasions. [2] The dissent’s lengthy discussion of the differences in the manner of affixing the pads for practices versus competitions is a classic “red herring.” The manner by which the pads may or may not have been affixed to the top of the boards simply has nothing to do with the manner in which this accident occurred. In either event, the pads were never affixed at the bottom at the ice surface.