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Kristina D. v. Nesaquake Middle School (New York)
(A cheerleader was injured when she fell from a shoulder stand during practice; she sued the district, coach and others for her personal injuries; the trial court denied the defendants’ motion for summary judgment based on assumption of the risk, but the decision was reversed on appeal.)

The minor plaintiff was an experienced middle school cheerleader who was injured performing a “shoulder stand” during practice, a stunt she had performed many times in the past.  She filed a claim alleging that the school district and the coach acted negligently by, among other things, “failing to supervise the cheerleaders properly in performing the stunt.”  The defendants filed a motion for summary judgment arguing that the claims were barred by assumption of the risk.  The motion was denied, and the defendants appealed.

On appeal, the Court explained that “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.”  However, the Court also noted that “[e]ven where the risk of injury is assumed, . . . a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from ‘unassumed, concealed, or unreasonably increased risks.'”

The Court concluded that the defendants had, indeed, shown that the plaintiff was experienced and knew the risks associated with the activity.  Additionally, the defendants had made a prima facie showing that the plaintiffs was adequately supervised.  Plaintiff’s opposition amounted to nothing more than “speculative and conclusory statements.”  Therefore, the trial court’s decision was reversed.

NOTE: Arguing assumption of the risk is often difficult in the context of supervised school sports and activities.  “Adequate” supervision and/or coaching is often a factual dispute guided by expert testimony, which can prevent a ruling as a matter of law at the motion stage.  Rulings under those circumstances oftentimes depend on the aggressiveness of the assigned judge.

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