Loney v. Adirondack River Outfitters, Inc.

Appeal from an order of Supreme Court, Onondaga County (Paris, J.), entered October 28, 2002, which denied defendant’s motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed. Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained during a whitewater rafting trip operated by defendant. Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint based on the doctrine of primary assumption of risk. Defendant met its initial burden on the motion by establishing that being tossed about inside or outside of the raft is an inherent risk of whitewater rafting and that any injury resulting from that risk “is a known, apparent, or reasonably foreseeable consequence” of participating in the activity (Walter v State of New York, 235 AD2d 623, 624 [1997]; see Morgan v State of New York, 90 NY2d 471, 482-486 [1997], rearg denied sub nom. Chimerine v World Champion John Chung Tae Kwon Do Inst., 90 NY2d 936 [1997]; Turcotte v Fell, 68 NY2d 432, 437-439 [1986]; see also Fairchild v Amundson, 104 Wash App 1027 [748] [2001]; Ferrari v Grand Canyon Dories, 32 Cal App 4th 248, 38 Cal Rptr 2d 65 [1995]). Defendant also established that plaintiff had an appreciation of the nature of the known, apparent, or reasonably foreseeable risks inherent in whitewater rafting and voluntarily assumed them, and that the raft and participation in the event were as safe as they appeared to be (see Morgan, 90 NY2d at 484; Turcotte, 68 NY2d at 439; Papa v Russo, 279 AD2d 744, 745 [2001], lv denied 99 NY2d 507 [2003]). Plaintiff failed to raise a triable issue of fact in opposition to the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present — Hurlbutt, J.P., Scudder, Kehoe, Burns and Gorski, JJ.