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Supreme Court, Appellate Division, Fourth Department, New York

Farnham v. Meder
New York
45 A.D.3d 1315 (N.Y.A.D. 4 Dept., 2007)


Case Details
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Summary:   In this New York case, the plaintiff commenced this negligence action seeking damages for injuries sustained when defendants' bull knocked him to the ground while plaintiff was chasing the bull from his own property. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff's activities in chasing the bull constituted primary assumption of the risk. This court concluded that Supreme Court properly denied defendants' motion. The record established that plaintiff was fully familiar with defendants' bull and had in fact chased the bull from plaintiffs' property on prior occasions. At no time had the bull ever acted aggressively toward plaintiff, and thus plaintiff had no reason to assume that the bull would do so on this particular occasion.

Opinion of the Court:

MEMORANDUM:

*1 Plaintiffs commenced this negligence action seeking damages for injuries sustained by Mitchell Farnham (plaintiff) when defendants' bull turned and knocked him to the ground while plaintiff was chasing the bull from plaintiffs' property. Defendants moved for summary judgment dismissing the complaint on the ground that “plaintiff's activities ... [in chasing the bull] constitute primary assumption of [the] risk.” We conclude that Supreme Court properly denied defendants' motion.

“The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries ... and applies to the voluntary participation in sporting activities ... as well as to the voluntary participation in nonsporting activities, both proper and improper, which involve an elevated risk of danger” ( Giugliano v. County of Nassau, 24 A.D.3d 504, 505, 808 N.Y.S.2d 244; see generally Turcotte v. Fell, 68 N.Y.2d 432, 438-441, 510 N.Y.S.2d 49, 502 N.E.2d 964). While defendants are correct that the doctrine has been applied to activities other than sporting, recreational and entertainment activities ( see e.g. Watson v. State of New York, 77 A.D.2d 871, 431 N.Y.S.2d 55, affd. 52 N.Y.2d 1022, 438 N.Y.S.2d 302, 420 N.E.2d 100; Sy v. Kopet, 18 A.D.3d 463, 795 N.Y.S.2d 75, lv. denied 6 N.Y.3d 710, 813 N.Y.S.2d 46, 846 N.E.2d 477; Belloro v. Chicoma, 8 A.D.3d 598, 779 N.Y.S.2d 231; Westerville v. Cornell Univ., 291 A.D.2d 447, 447-448, 737 N.Y.S.2d 389), we nevertheless conclude under the circumstances of this case that summary judgment is inappropriate. It cannot be said as a matter of law that the risk of injury in chasing this particular bull was “fully comprehended or perfectly obvious” ( Turcotte, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; see e.g. Kremerov v. Forest View Nursing Home, Inc., 24 A.D.3d 618, 620, 808 N.Y.S.2d 329; Weller v. Colleges of the Senecas, 217 A.D.2d 280, 283, 635 N.Y.S.2d 990). Indeed, the record establishes that plaintiff was fully familiar with defendants' bull and had in fact chased the bull from plaintiffs' property on prior occasions. At no time had the bull ever acted aggressively toward plaintiff, and thus plaintiff had no reason to assume that the bull would do so on this particular occasion. In our view, “plaintiff's voluntary decision to [chase the bull] ‘is simply a factor relevant in the assessment of culpable conduct’ ” ( Weller, 217 A.D.2d at 284, 635 N.Y.S.2d 990; see CPLR 1411).

Finally, the contention of defendants that they cannot be held liable for plaintiff's injuries because they had no prior notice that the bull had vicious propensities is improperly raised for the first time in defendants' reply papers, and we therefore do not consider it ( see Whitley v. Buffalo Mun. Hous. Auth., 34 A.D.3d 1368, 1369, 824 N.Y.S.2d 509; Lewis v. Boyce, 31 A.D.3d 395, 396, 817 N.Y.S.2d 659; O'Neil v. Holiday Health & Fitness Ctrs. of N.Y., 5 A.D.3d 1009, 1010, 773 N.Y.S.2d 724).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

N.Y.A.D. 4 Dept.,2007.

 

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