This was originally published on the SGR Blog.
Was Track Operator Liable for the Injury?
Jasmine Serrano sued K1 Speed-N.Y. Inc. for injuries and damages at an indoor go kart racing facility. Serrano alleged that her injuries resulted from K1’s negligence, carelessness and recklessness, and failure to have adequate supervision and adequately trained staff.
K1 moved for summary judgment on the grounds that Serrano’s primary assumption of risk constituted a complete bar to recovery. K1 submitted the pleadings, Serrano’s bill of particulars and the deposition transcripts of Serrano, non-party Jesse Utarid, Bryan Boesch, and Jordan Greene on behalf of K1, the accident report, go-kart inspection log sheet, an assumption of risk and waiver signed by Serrano and K1’s track rules and safety information.
At her deposition, Serrano testified that she sustained injuries when the go-kart that she was operating was rear ended by another go kart. As a result of the impact, her go-kart collided with the track barrier. Serrano had previously driven a go-kart at K1, at which time she read and signed an assumption of risk and waiver agreement. Serrano also testified that she understood that the risks of participating in the go-kart race included coming into contact with the barriers, a person or other go-karts. She testified that throughout the first two laps of the race she collided with the barriers on almost every turn.
K1 argued that it engaged in all reasonable efforts on the date of the accident to minimize the risks of collisions, utilizing a flag system during the races and installing safety barriers along the track as well as providing seatbelts and helmets for the customers. K1 further argued that bumping and collisions are known to occur and do occur in go-kart racing, and Serrano herself acknowledged these risks during her deposition.
Under the doctrine of primary assumption of risk, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. A plaintiff negates any duty on the part of the defendant to safeguard him or her from a known risk by freely assuming said risk. If the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them and the defendant has performed its duty. In other words, a plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law.
K1 asserted that Serrrano was barred from recovery because she voluntarily participated in the go-kart race and assumed the associated risks. In short, K1 argued that Serrrano was well aware of the risks of coming into contact with the barriers and/or other drivers both prior to and on the day of the accident.
Serrano’s accident occurred when her go-kart was struck from behind by another participant and she struck the protective barrier. The Court found that such an occurrence was a commonly appreciated risk inherent in driving go-karts.
K1 established its prima facie entitlement to judgment as a matter of law by demonstrating that Serrano assumed the risks inherent in driving a go-kart, including the risk of sustaining injuries in the manner in which she did so.
In opposition, Serrano argued that questions of fact existed regarding whether the assumption of risk doctrine was applicable and whether K1 unreasonably increased the risks associated with the usage of its go-karts by failing to timely intervene.
In her affidavit, Serrano averred that she understood that there were certain risks involved in operating a go-kart. However, she further stated that she did not recognize, nor did she agree, to allow another go-kart driver to repeatedly strike go-karts, including hers, during the race. Serrano claimed that there was an aggressive driver who repeatedly struck other drivers during the race and that K1’s employees stopped the race and warned the driver who was striking other go-karts. Serrano asserted that the driver “continued to bump and collide with other go karts” and that K1’s employees failed to intervene. She claimed that the driver “who had been hitting go karts throughout the race struck the rear of [her] go kart, which caused [her] to lose control and slam the wall.”
The evidence before the Court did not support Serrano’s allegations. Serrano testified at her deposition that she did not observe any collisions on the day of her accident, she only heard other collisions. It was her boyfriend that told her that the person who struck her “kept hitting people.” According to Serrano, her boyfriend saw that individual hit other people twice. However, her boyfriend’s testimony also failed to support this allegation.
Serrano’s boyfriend, Jesse Utarid, testified that shortly after the race began, he observed a man in a blue plaid shirt bump another driver which resulted in a collision. It appeared to Utarid that the two drivers knew each other. Notably, that collision was the only bumping between go-karts that Utarid actually observed that day. He testified that he heard another collision and, when he came around a turn, he saw the same two go-karts stopped and the occupants were having what appeared to be a friendly argument. Utarid could not say whether the individual in the plaid shirt was the one who caused the second collision. As such, on the day of the incident, Utarid only observed the man in the blue plaid shirt bump one go-kart and he did not witness the collision involving Serrano’s go-kart.
Serrano could not identify the individual who rear ended her go-kart, nor was there any evidence that the individual who struck the rear of her go-kart had been driving aggressively or that he bumped and collided with other go-karts multiple times prior to striking Serrano’s go-kart. So, Serrano’s affidavit in opposition to K1’s motion contained factual allegations that were in conflict with her own deposition testimony, as well as that of Utarid. As such, the Court found that the affidavit merely raised what appeared to be feigned issues of fact designed to avoid the consequences of earlier deposition testimony, and thus, was insufficient to defeat K1’s motion.
Serrano also argued, in essence, that there were questions of fact as to whether K1 failed to use reasonable care to guard against a risk which might reasonably be anticipated, claiming there were issues whether K1’s employees should have intervened and removed the aggressive driver from the track prior to the incident. However, there was no record evidence that the individual who struck the rear of Serrrano’s go-kart had been driving aggressively throughout the race or that he had been “hitting everyone else on the track.” As such, there was no evidence that Serrrano was exposed to unreasonable increased risks of injury. Instead, the record demonstrated that Serrrano was injured when her go-kart was struck by another go-kart, which was a common and anticipated risk of go-karting. Thus, Serrano failed to raise a triable issue of fact as to whether K1 unreasonably increased the risk of injury above and beyond the usual dangers inherent in the sport.
Serrano next argued that there were questions of fact regarding whether the incident was foreseeable because the alleged aggressive driver struck another go-kart with sufficient force to cause the race to be stopped twice before the incident occurred, concluding that “it was foreseeable that this driver would continue to strike other go-karts, or there are at least issues of fact about this topic. The incident involving [Serrano] was not a sudden, unanticipated and accidental occurrence. Rather there was a prolonged buildup to this collision.” But, as the Court found, there was no evidence in the record to support those factual assertions, nor that conclusion. Accordingly, Serrano failed to raise an issue of fact on that argument as well.
Nor did Serrano raise an issue of fact by alleging that K1’s own rules were violated when the alleged aggressive driver was not removed from the course before the accident involving Serrano. But the operator of the track did not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart, and no such duty to Serrano was deemed to have been created by the operator’s rule prohibiting go-karts from intentionally bumping into other karts, or by its policy of stopping the race when bumping was observed.
Serrano failed to raise any issue of fact demonstrating that the cause of her accident and alleged injuries—being struck from behind by another go-kart and being propelled into the barrier—was not a commonly appreciated risk inherent to go-kart racing. Serrano’s complaint against K1 was dismissed.