State of New York
Supreme Court : County of Monroe

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This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case is simple factually but interesting from a legal point of view, because it concerns some of the more subtle aspects of the law of assumption of risk. The infant plaintiff here, nine years old at the time, had been attending weekly gymnastics classes at defendant's gymnasium for about a year. On the date in question she was instructed by her teacher--a substitute for the normal instructor--to perform certain exercises on the uneven parallel bars. Although she had done this or similar exercises a few times before without incident, on this occasion the plaintiff missed her foothold and fell. The instructor, though acting as a spotter, was unable to brake or stop her fall, and the plaintiff broke her arm.

The defendant claims that this is a classic assumption of risk case, and has moved for summary judgment. The danger of falling is an obvious risk of participating in gymnastics at any level, and the plaintiff had seen others fall and in fact had fallen herself; there is nothing more to say. The defendant relies on three Court of Appeals cases, Morgan v State of New York (90 NY2d 471), Marcano v City of New York (99 NY2d 548) and David v County of Suffolk (1 NY3d 525).

The plaintiff, however, has presented opposition based primarily on an expert affidavit. That affidavit, from a recognized local authority on gymnastics and gymnastics training, states that all gymnastics courses in the United States follow the rules and procedures of a body called USA Gymnastics. A central principle of these rules is the progressive nature of gymnastics training.

To this end the large number of skills necessary for a competent gymnast are divided into levels. Beginners must master all Level One skills before being allowed to attempt Level Two skills, and so on. USA Gymnastics lists some forty skills at each level, and it is proper, says the affidavit, to record each student's progress on a checklist so more difficult (and thus hazardous) skills are not introduced prematurely.

The expert continued by noting that the defendant's checklists do not meet the USA Gymnastics standard. Instead of forty skills per level, the Northern Hemisphere card lists a total of twelve for all levels. It was also clear, the expert concluded, that the plaintiff had not mastered all of the skills for Levels One through Four at the time of the accident, and the exercise she had been directed to perform is classified in Level Five.

Implicit in this analysis is a somewhat more sophisticated approach to the law regarding voluntary assumption of risk. The defendant properly points out that the underlying duty in assumption of risk cases is that the activity be as safe as it appears to be. They go on to argue, again citing black letter law, that falling is an obvious risk of engaging in gymnastics. The issue here, however, is not that one. It is the question of whether the degree of risk of a fall would be known by participants like the infant plaintiff.

The plaintiff's argument, which to this court seems a sound one, is that a child in the plaintiff's position would not know that a particular move was something that required foundational training and would not know if she had achieved the proper skill level to attempt it. She was merely following an instructor's directions, and she had a right, as a student, to rely upon the appropriateness of the directions for a student with her skill level. If they were not--and the plaintiff has made a strong case for this--then the activity was not as dangerous as it appeared to be. It was far more dangerous.

Two of the Court of Appeals cases cited by defendants are clearly distinguishable. In Marcano v City of New York (99 NY2d 548) an inexperienced exerciser decided on his own to use a piece of equipment he had never seen before, non-standard parallel bars that were erected over a concrete pavement in a jail exercise yard (see Appellate Division decision, 296 AD2d 43, 44, for facts). He was not following an instructor's directions. The plaintiff here, on the other hand, is arguing that she was entitled to rely on the program of instruction being as safe as it appeared to be; she is not relying on arguments about the condition or nature of the equipment and she did not choose herself the exercise that she attempted to perform.

The most recent case, David v County of Suffolk (1 NY3d 525), involved a negligent supervision claim after a school accident, where the physical education teacher proved that he had instructed the class in proper techniques, demonstrated, and was ten to twelve steps away from the plaintiff when the plaintiff fell. The Court of Appeals rejected plaintiff's expert opinion because, in their view, he failed to show the foundation or source for his statements that the supervision was negligent. In this case, on the contrary, the expert affidavit establishes both the source of the gymnastics training standards on which she relies and the exact nature of the defendant's deviation.

Of the four cases decided together in Morgan v State of New York (90 NY2d 471), the one most germane to the present fact pattern was analyzed this way:

In Chimerine v World Champion, we also reject plaintiff's argument that disputed factual issues preclude summary judgment for defendants on assumption of risk grounds. Plaintiff claims that at the time of her accident she did not understand the risks inherent in martial arts training because she had only taken three classes prior to the class when she was injured. Plaintiff's own deposition testimony was that the instructor directed that she "step, hop, skip, jump, kick, land" and she attempted this maneuver after seeing it performed by the instructor and a few classmates. A reasonable person of participatory age or experience must be expected to know that there is a risk of losing one's balance and of injury when hopping, skipping or jumping in such circumstances. Because of the absence of any record material that the elemental maneuver plaintiff attempted to execute was so unreasonably risky that plaintiff would not have realized that there was a risk of injury, the grant of summary judgment dismissing the complaint by the courts below should not be disturbed (90 NY2d, at 488).

Not all falls are equally foreseeable. Assuming the risk of falling from a bicycle does not mean that one assumes the risk of any and all falls, occasioned by improperly paved roads, poor maintenance of a bicycle rented from a shop, or the malevolence of certain motorists. There is a risk of falling in almost every activity once one leaves the safety of one's bed--and people are known to have fallen out of bed, as well. What counts is the plaintiff's reasonable estimate of the risks involved. That is why the standard formulation is that one assumes the usual and ordinary risks of participation in an activity.

No formula exists for deciding when a particular risk is unusual, extraordinary (in the literal sense) or significantly greater than is apparent, so that a duty of higher supervision or warning is required; but the present case is arguably one in which the plaintiff was instructed to do something that was much riskier than anything she could reasonably be supposed to have consented to.

In this respect, at least, it resembles a recent case from the Fourth Department, Royal v City of Syracuse (309 AD2d 1284), in which a cheerleader attempted a stunt without adequate spotting. The Court held that "plaintiffs raised a triable issue of fact whether the coach 'failed to provide proper supervision of the cheerleading activities, thereby exposing [the infant] plaintiff to unreasonably increased risks of injury'" (309 AD2d, at 1285, citing Sheehan v Hicksville Union Free School Dist., 229 A.D.2d 1026). The same can be said of this case, mutatis mutandis.

There is another issue here: where the spotter was placed. According to the expert, the instructor should have been between the two bars and closer to the high one. Plaintiff's papers say that both the plaintiff and her mother saw the instructor outside the bars and on the side of the lower one. The deposition testimony, however, appears more ambiguous on this issue than the plaintiff's characterizations. Since the defense of primary assumption of risk must be rejected, though, the court does not have to resolve this issue. In any case, the defendant fails to present a strong case that the instructor was where she was supposed to be, and of course she failed to catch the plaintiff.

The motion for summary judgment is therefore dismissed, with costs. Counsel for plaintiffs may prepare the order.

DATED: Rochester, New York

April 23, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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