Appellate Division of the Supreme Court of New York, 1998

Rios v. Town of Colonie

Appellate Division of the Supreme Court of New York · Decided December 17, 1998 · Mercure

256 A.D.2d 900; 682 N.Y.S.2d 272; 1998 N.Y. App. Div. LEXIS 13558

Cases that cite this one

12 later published cases cite this decision.

Connor v. Tee Bar Corp. (Appellate Division of the Supreme Court of New York 2003)
McGrath v. Shenendehowa Central School District (Appellate Division of the Supreme Court of New York 2010)
Haider v. Zadrozny (Appellate Division of the Supreme Court of New York 2009)
Martin v. State (Appellate Division of the Supreme Court of New York 2009)
Gardner v. Town of Tonawanda (Appellate Division of the Supreme Court of New York 2008)
Pantalone v. Talcott (Appellate Division of the Supreme Court of New York 2008)
Myers v.Friends of Shenendehowa Crew, Inc. (Appellate Division of the Supreme Court of New York 2006)
Huneau v. Maple Ski Ridge, Inc. (Appellate Division of the Supreme Court of New York 2005)
Phelan v. State (N.Y. Ct. Cl. 2005)
Sharrow v. New York State Olympic Regional Development Authority (N.Y. Ct. Cl. 2002)
Daigle v. West Mountain (Appellate Division of the Supreme Court of New York 2001)
Ruepp v. West Experience, Inc. (Appellate Division of the Supreme Court of New York 2000)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Mercure, J.

Appeal from an order of the Supreme Court (Teresi, J.), entered June 5, 1998 in Albany County, which, inter alia, denied defendants’ motion for summary judgment dismissing the complaint.

Plaintiff, a correction officer employed by the Department of Correctional Services, brought this action to recover for injuries he sustained at the Department Olympics on June 5, 1996 while he was attempting to navigate an obstacle course designed and constructed by defendant Town of Colonie Police Department in the Town of Colonie, Albany County. As plaintiff entered an obstacle consisting of a length of 2V2 to 3-foot diameter black plastic culvert pipe, his head grazed a sharp and jagged edge of the pipe, causing him to sustain, among other injuries, a six-inch laceration to the top of his head which required 21 sutures to close. Following defendants’ service of an answer asserting as an affirmative defense, inter alia, the doctrine of assumption of risk, defendants moved for summary judgment dismissing the complaint. Plaintiff cross-moved for an order dismissing the affirmative defense of assumption of risk. Supreme Court denied the motion and the cross motion and defendants appeal. We affirm.

Patently, although plaintiff assumed the risks that are generally inherent in and flow from his participation in this type of athletic competition (see, Morgan v State of New York, 90 NY2d 471, 484; Rutnik v Colonie Ctr. Ct. Club, 249 AD2d 873, 874, lv denied 92 NY2d 808), he did not assume risks that were unique and resulted in a dangerous condition over and above the usual dangers inherent in the activity (see, Morgan v *901State of New York, supra, at 484; Turcotte v Fell, 68 NY2d 432, 439). We conclude that plaintiff’s evidentiary submissions raised a genuine factual issue as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to plaintiff or whether it constituted an “unassumed, concealed or unreasonably increased risk[]” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658; see, Rutnik v Colonie Ctr. Ct. Club, supra, at 874; Machowski v Gallant, 234 AD2d 933), particularly where, as here, plaintiff’s time to inspect the course was limited to a brief walk-through prior to the race.

Mikoll, J. P., White, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, with costs.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.