New York State Court of Claims

New York State Court of Claims

NOTLEY v. STATE OF NEW YORK, #2003-018-232, Claim No. 99489, Motion No. M-66821


Synopsis


Defendant brings motion pursuant to CPLR §3212 to dismiss claim. Defendant set forth sufficient undisputed facts to warrant the granting of summary judgment. The claimants did not oppose the motion.

Case Information

UID:
2003-018-232
Claimant(s):
WANDA L. NOTLEY and MICHAEL A. NOTLEY
Claimant short name:
NOTLEY
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99489
Motion number(s):
M-66821
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
WANDA L. NOTLEYPRO SE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: CHRISTOPHER WILES, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 16, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Defendant brought a motion for summary judgment.
Claimanttttt[t] did not respond to the motion.
The claim alleges that on September 18, 1998, Wanda Notley volunteered to participate in a simulated crash test administered by the New York State Police at the fire hall in the Town of Webb, Fire District No. One, Old Forge, New York. Claimant was seated in the demonstrator model, which was deployed to move down a metal ramp at the speed of seven-to-ten miles-per-hour which hit a bumper at the bottom. The air bag was deployed. Upon impact, claimant sustained injuries. The claim asserts that the State was negligent in its administration of the simulated crash test, negligently allowed inexperienced personnel to administer the test, failed to inform and educate claimant of the risks involved, and provided unsafe and inadequate equipment to simulate the crash test.

Defendant, in support of its motion, has attached the sworn testimony of New York State Trooper, (hereinafter Trooper) James Simpson. Trooper Simpson operated the simulated crash test or "seat belt convincer" display at the Fire District event. The "convincer" simulates a slow-speed crash to demonstrate the importance of air bags and seat belt use. Claimant approached Trooper Simpson to volunteer to participate in the simulated crash and was seated in the convincer when Trooper Simpson explained the demonstration
.....[.] He explained that the "accident" would occur at approximately seven-to-ten miles-per-hour after traveling down a ramp and hitting a rubber bumper. The air bag, controlled by a compressor would slowly inflate. Trooper Simpson testified that he gave each participant the same information and safety instructions before each simulated crash. In addition, he told them not to have anything in their pockets, not to wear glasses or contact lenses, they could not participate if they were pregnant, had back injuries, or were recovering from injuries. Trooper Simpson also explained to claimant, as he did all participants, that she needed to keep her head back and mouth closed as precautions during the demonstration.nnnn[n] Trooper Simpson secured claimant's seat belt, and after obtaining a go-ahead from her, proceeded with the demonstration.nnnn[n] Upon completion, Trooper Simpson recalled her complaining of soreness on her nose. Claimant refused medical attention.nnnn[n]
Claimant was not the first participant to ride the "convincer" that day, nor was she the last. She was, however, the first person in Trooper Simpson's experience to complain of problems after riding the demonstration machine. Trooper Simpson was a member of the State Police force for over 24 years and had been operating the "convincer" for about eight or nine years prior to claimant's ride. At the point in time claimant rode the "convincer," Trooper Simpson had given several hundred demonstration rides during that year and had used the "convincer" in driver education courses in seven counties. Trooper Simpson was trained to use the demonstration machine by the trooper who previously held his position. Trooper Simpson testified that the "convincer" operated properly that day.

The State argues that claimant assumed the risk of riding the "convincer" that day. The doctrine of assumption of the risk serves to define the duty of care defendant owes to the claimant within the context of claimant's voluntary participation in, typically, a sporting event or activity (
Morgan v State of New York, 90 NY2d 471, 485; see also, Westerville v Cornell University, 291 AD2d 447 [training seminar for mental health providers, practice session designed to teach physical restraint techniques to control agitated patients]; Murphy v Steeplechase Amusement Co., 250 NY 479 [amusement park ride]; Drogaris v Trustees of Columbia University, 293 AD2d 705 [participation in a demonstration in a kinesiology class]). The doctrine applies where voluntary participants in activities with elevated risks can be held to have consented by their participation "to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" (Turcotte v Fell, 68 NY2d 432, 439). Unassumed, concealed, or unreasonably increased risks are not included (Benitez v New York City Bd of Educ., 73 NY2d 650, 658).
Defendant has set forth sufficient undisputed facts to warrant this Court granting summary judgment. Claimant acknowledged that she voluntarily participated in the demonstration. It was fully explained to claimant how the "convincer" worked, and she could have observed other individuals participating in the demonstration prior to her participation. The "convincer" was working properly with no unusual occurrences that day. There is no indication that Trooper Simpson operated the machine negligently, or did anything to conceal or increase the risks to claimant. As a simulated car crash, the risks were apparent or reasonably foreseeable. Moreover, Trooper Simpson was trained in the use of the "convincer," had been conducting these demonstrations between eight and nine years, had conducted several hundred demonstrations just in 1998, and had never had any other complaints or injuries from participants in the demonstration.

Based upon the foregoing, without any opposition, the Court GRANTS defendant's motion for summary judgment. The claim is DISMISSED. The trial scheduled for July 29, 2003, is no longer necessary.

June 16, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

Notice of Motion........................................................................................................1

Affirmation of Christopher Wiles, Esquire, Assistant Attorney General,

in support, with exhibit attached thereto........................................................2


Defendant's memorandum of law with exhibits attached thereto..............................3


Filed Documents:


Claim..........................................................................................................................4

Answer.......................................................................................................................5


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The term claimant will refer to Mrs. Notley unless otherwise noted.

[.]....

Simpson deposition p. 32.

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id. p. 34.

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id. p. 37.