Was County Liable For Injuries to70 Year Old With Pacemaker?
Dennis Cannizzaro and his wife sued Westchester County to recover damages for personal injuries he allegedly sustained after falling off the “Derby Racer,” an amusement park ride that is owned and operated by the County. The Derby Racer had been in operation since 1928, and was described as a fast-moving carousel with wooden horses that move up and down as the ride spins around a stationary center console. Riders were instructed to place their feet into stirrups located on each side of the wooden horse and to lean to the left, towards the center console, so as to counteract the centrifugal force created as the ride spinned. Each horse was also equipped with a metal handlebar for the rider to hold. Cannizzaro, who was 70 years old at the time of the accident and had a pacemaker, testified at his deposition that he had ridden the Derby Racer on at least two prior occasions before the day of the accident without incident, but that on that day he was unable to hold himself on the wooden horse he had chosen and was “thrown” to the right onto the walkway that surrounds the Derby Racer when the ride reached “full speed.”
The County moved for summary judgment dismissing the complaint, contending that the action was barred by the doctrine of primary assumption of the risk. Supreme Court granted the County’s motion. Cannizzaro appealed.
Under the doctrine of primary assumption of the risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the activity generally and flow from such participation. Assumption of the risk is not an absolute defense but rather a measure of the defendant’s duty of care, which is 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, the participant has consented to them and the defendant has performed its duty. Awareness of the risk is to be assessed against the background of the skill and experience of the particular plaintiff.
Here, the appellate court found that the County established its prima facie entitlement to judgment as a matter of law by submitting evidence that Cannizzaro was aware of and appreciated the risks inherent in riding the Derby Racer, including the risk that he might fall off the ride if he was unable to hold himself on the wooden horse, and that he voluntarily assumed the risk.
In opposition, Cannizzaro failed to establish the existence of a dangerous condition over and above the obvious risks inherent in riding the Derby Racer. The opinion of his expert — that Cannizzaro’s tall height and heavy weight increased the risk that he would be unable to hold himself on the wooden horse and that the County should have warned him of that increased risk– failed to raise a triable issue of fact. Cannizzaro knew the risk inherent in riding the Derby Racer and therefore could make his own judgment as to whether he would be able to hold himself on the ride. In addition, the record demonstrated that the County posted appropriate warning signs which complied with the governing law and all relevant safety measures were followed by the ride operators, including both a safety announcement and an individualized inspection of Cannizzaro’s position on the horse before the ride began.
Dismissal of Cannizzzaro’s complaint was affirmed.