New York State Court of Claims

New York State Court of Claims

GORMAN v. THE STATE OF NEW YORK, #2008-009-038, Claim No. 111609, Motion No. M-75315


Defendant’s motion for summary judgment dismissing the claim based upon the defense of assumption of risk was denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
BY: Karen S. Svendsen, Esq.,Of Counsel.
Defendant’s attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 23, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought this motion seeking an order of summary judgment dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney’s Affirmation, Affidavit of Steven Meyer, with Exhibits 1,2,3

Defendant’s Memorandum of Law 4

Affidavit in Opposition of Sara Lynn Gorman, Claimant’s Memorandum of Law, with Exhibit 5,6

Attorney’s Affirmation (Reply) 7

In this claim, claimant seeks damages for personal injuries suffered by her when she was injured while participating in a women’s lacrosse game as a member of the State University of New York at Cortland (SUNY Cortland) Women’s Lacrosse Team. The injury occurred during an NCAA Division III, State University of New York Athletic Conference Women’s Lacrosse Championship Tournament, which was being held at the SUNY Cortland campus.

Defendant now moves for summary judgment dismissing the claim, contending that claimant is barred as a matter of law from pursuing this claim based upon the doctrine of primary assumption of risk.

It is well settled that summary judgment is the procedural equivalent of a trial (Andre v Pomeroy, 35 NY2d 361) and should be granted only when it has been established that there is no triable issue (Moskowitz v Garlock, 23 AD2d 943). The role of the Court, therefore, on a motion for summary judgment is not to resolve material issues of fact, but instead is to determine whether any such issues exist (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). If such material issues of fact exist, the motion for summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223).

The proponent of a summary judgment motion, in this case the defendant, must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557). Once the proponent of summary judgment has made a prima facie showing, however, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial (Zuckerman v City of New York, supra; Alvarez v Prospect Hosp., 68 NY2d 320). On such a motion, the evidence submitted must be viewed in a light most favorable to the non-moving party (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610).

As previously stated, defendant relies upon the doctrine of primary assumption of the risk in support of this motion. This doctrine is often applied to claims arising from injuries suffered in a claimant’s participation in a sporting event or activity. Voluntary participants in sporting activities are deemed to have consented (either expressly or impliedly) “to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484). The owner of the sporting venue is therefore relieved from liability for injuries occurring to a participant in a sporting activity “when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risk” (Morgan v State of New York, supra at 484 [citations omitted]).

In this particular matter, defendant has submitted documentation by which claimant expressly acknowledged that she fully understood the risks associated with her participation on the lacrosse team at SUNY Cortland, and released the State from any potential future claim arising from such participation.

In addition to this acknowledgment of the risks involved in participating in the sport of lacrosse, defendant also relies upon claimant’s voluntary participation as further evidence that claimant assumed the risk of injury. A voluntary participant in an athletic activity is deemed to have consented to the risk of injury that is a “known, apparent or reasonably foreseeable consequence[s] of the participation” (Turcotte v Fell, 68 NY2d 432, 439).

As a result, “[i]f the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, supra at 439). In this particular matter, however, claimant contends that the field on which she was injured was defective, and that the condition of the field was a proximate cause of her injury. She further contends that the doctrine of assumption of risk does not therefore act as a bar to her recovery. In other words, although claimant admittedly had assumed the normal risks of injury associated with playing lacrosse, it is her position that she was not aware of and did not appreciate the risks of playing lacrosse on a dangerous and defective field. In support of this position, claimant has submitted the deposition testimony of Kevin Kilgallon, an Associate Project Coordinator with the State University Construction Fund. In his testimony, Mr. Kilgallon confirms that representatives from SUNY Cortland were aware of a drainage problem with the field prior to claimant’s injury.

For purposes of this motion, therefore, the Court finds that claimant has raised an issue of material fact which precludes summary judgment. While this Court is certainly aware that the doctrine of assumption of risk poses a heavy burden which claimant must still overcome, claimant has raised a material issue as to whether the condition of the field created a dangerous condition over and above the usual dangers inherent in the sport of lacrosse[1].

Based upon the foregoing, therefore, it is

ORDERED, that Motion No. M-75315 seeking an order of summary judgment dismissing the claim is hereby DENIED.

December 23, 2008
Syracuse, New York

Judge of the Court of Claims

[1].Claimant had previously made application to this Court for permission to serve and file a late claim. In considering the merits of that application, this Court, in its decision and order, noted that the assumption of risk doctrine may (and still may) completely bar any recovery by claimant. (Gorman v State of New York, Motion No. M-69494, September 19, 2005, Midey, J., UID No. 2005-009-047). Unpublished decisions and selected orders of the Court of Claims are available via the Internet at