New York State Court of Claims

New York State Court of Claims

CHINITZ v. THE STATE OF NEW YORK, #2008-044-584, Claim No. 112102, Motion Nos. M-74889, CM-75017


Court denies defendant’s motion for summary judgment and claimant’s cross motions for summary judgment and dismissal of affirmative defense of assumption of the risk. Questions of fact and credibility in claim alleging injuries incurred in cheerleading practice must be resolved at trial.

Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK1 1. The Court has, sua sponte, amended the caption to reflect the State of New York as the sole proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant’s attorney:
McDONOUGH & ARTZ, P.C.BY: Philip J. Artz, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 1, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this claim to recover for personal injuries that she allegedly suffered while participating in a practice session for the Cheer Team (Team) at the State University of New York at Binghamton (BU). Defendant answered and asserted various affirmative defenses. Discovery was conducted. Defendant now moves for summary judgment dismissing the claim. Claimant opposes the motion and cross-moves for partial summary judgment on the issue of liability, or, in the alternative, to dismiss the affirmative defense of assumption of the risk.

Defendant argues that claimant was an experienced cheerleader who was aware of the risks and dangers of the sport, and assumed the risk of engaging in that activity. Defendant contends that there were no concealed or enhanced risks in the post-game practice, and therefore, that no negligence can be imputed to the coach, and thus vicariously to defendant. Defendant also asserts that at the time of her accident, claimant did not have a clear understanding of the procedure of receiving academic credit for this activity, so the doctrine of inherent compulsion does not apply.

Conversely, claimant contends that the Coach unreasonably increased the risk of injury by requiring the Team to perform stunts at the end of an extremely long day, failing to use a protective mat, failing to have a front spotter, and rotating bases[2] in and out of claimant’s stunt group. Claimant argues that, in this particular instance, she did not voluntarily assume the risk of the activity, both because the Coach compelled her to perform the stunt many times, and because claimant would not have received academic credit for her participation in this “extracurricular” activity if she refused to practice. Further, claimant asserts that BU had neither a process to review the cheerleading coach’s qualifications nor to otherwise evaluate the Coach’s performance. Claimant also contends that defendant did not have any policy or procedure concerning either the use of mats or spotters, and finally, that defendant did not provide any guidance with respect to the conduct of the practices.

Claimant testified at her deposition that she had been a cheerleader – specifically, a “flyer”[3] – during high school for four years. Claimant stated that she tried out for the Team during the fall semester of her freshman year at BU, and was selected as a member by Coach Kristi Putrino (the Coach). Claimant believed it was BU policy that she would receive at least two academic credits for completing the season, although she could not remember whether it was a written policy or whether it was just something she had heard.

Claimant said that she returned to BU from her home on November 30, 2003, the last day of the Thanksgiving break. The Team was scheduled to perform at a basketball game that afternoon, and practiced for a short time immediately prior to the game.[4] Claimant testified that during the game, the Team cheered from the sidelines, and performed one or two stunts on the court. Claimant said that, at some point during the game, she learned that there would be a practice after the game. During the post-game practice, the entire team learned a new dance, and approximately an hour into the practice, they performed stunts.[5] Claimant primarily performed the “liberty”[6] stunt as a flyer. Claimant acknowledged that she had performed liberty stunts both in high school and during tryouts at BU, but had not acted as a flyer during any of the games up to that time, and had practiced as a flyer only sporadically throughout the semester.

Claimant stated that in addition to the flyer, a stunt group generally consists of two bases, one front spotter, and one back spotter. The Coach was rotating members in and out of claimant’s stunt group in order to determine the right combination of performers for the stunt, and as a result, claimant had performed a liberty stunt with different groups at least 10 times that evening, prior to her fall. Claimant also indicated that during this portion of the practice, at least two of the other Team members were sitting down with the Coach because, in claimant’s opinion, they were tired. Claimant testified that during performance of the liberty stunt in which she was injured, she was approximately seven or eight feet in the air when the bases dropped her, and she hit the bare hardwood floor with the sole of her right foot. Claimant explained that generally there were several ways for the flyer to dismount at the end of the stunt, but the bases dropped her before they ever got her to the highest point. Claimant believed that the floor mats were either kept in a closet in the room they were using or stored somewhere else in that same building, and had been used during some prior practices. However, claimant specifically indicated that there were no mats in use at the practice on November 30, 2003. Claimant further stated that sometime prior to her fall, she had asked the Coach if it would be possible to perform the stunt at a later date or time. Claimant advised that the Coach’s response was only to tell her to do the stunt again.

Coach Kristi Putrino also testified at an examination before trial. Putrino stated that she was employed part-time by BU as the Team Coach from fall 2002 through spring 2005. From 1999 through 2004, Putrino was also employed as a cheer team coach for a local high school. Putrino indicated that although she had First Aid and CPR certifications, neither were required for her position as Coach at BU.

Putrino explained that a liberty was a stunt which involved at least four and sometimes five people. Two team members, acting as a bases, would lift and extend the flyer into the air, and the flyer would stand on one leg, sometimes performing flexibility skills with the other leg. Putrino testified that a fourth Team member would be a back spotter, and if there was a fifth Team member available, that person would be a front spotter. Putrino indicated that there were two ways for the flyer to safely dismount. In either situation, the bases and the back spotter would catch the flyer, with the back spotter catching the flyer underneath the armpits. If a fifth person was available as part of the group, that person would be the front spotter and would catch part of the flyer’s legs.

Putrino believed that there was a book published by the National Cheerleading Association for collegiate level cheerleading, but admitted that she did not receive a copy of it before coaching at BU. Because many of the guidelines were the same as she used in her high school coaching, Putrino used the high school rules. Putrino also admitted that she did not receive any rules, regulations, or policies from BU which concerned either the Team (specifically) or cheerleading in general. It was her understanding that in order for a Team member to receive two college credits, Putrino would need to sign a document at the end of the course which would indicated whether the student had participated.[7] Putrino admitted that she had not seen either the course catalogue for BU or the Team course listing, and that she had never prepared a syllabus for the course.

Putrino testified that the Team always used mats when they practiced stunts. Once a week the Team would practice at her private facility, which had a floor with wall-to-wall mats. Putrino stated that all other weekly practices were held in the aerobics room – in the west gym on the BU campus – where they used cheer mats which had been specially made for the Team. These mats were either out in the open in the aerobics room, or stored in a closet in that room.

Putrino testified that on the day of claimant’s injury, the Team was practicing in the aerobics room, and there were three separate groups of members performing stunts. Putrino said that claimant said she wanted to be a flyer, and therefore claimant attempted the liberty stunt a few times toward the beginning of the practice session. Putrino said that later in the session, claimant requested to be a flyer again. Putrino indicated that claimant had attempted approximately 10 liberty stunts, but that she had not been successful at completing an extended liberty – one in which the bases would support the flyer at the height of their fully extended arms, rather than at chest level. Putrino stated that claimant needed more practice as she was not a very strong flyer, and as a result, Putrino wanted to use people who were relatively strong as bases for claimant.

Putrino stated that at the time of claimant’s injury, Putrino was working with a stunt group located next to claimant’s group. Putrino saw claimant “load” (step) in to be lifted up, but claimant was never raised to full arm-extension level. Putrino stated that there was one mat under claimant’s group and a second mat was being used by another group.

There was a back spotter in claimant’s group, but Putrino did not believe that there was a front spotter. Putrino indicated that claimant was “loaded” into the stunt by standing on one foot, and that the bases had raised claimant to chest level. Claimant then leaped forward, and hit the edge of the mat with her foot. Putrino admitted that if there had been a front spotter, that member would have stopped claimant before she hit the end of the mat. Putrino said that no one on the Team had complained of fatigue, and she specifically denied that she or any Team member was sitting down during the practice session. Putrino also denied that claimant had inquired about taking a break or whether she could perform the stunt at a later time.

David Simek, an Associate Director of Athletics for BU, testified at his deposition that at the time claimant was injured, participation on the Team would entitle a member to two college credits which would be awarded after the spring semester.[8] Because Simek was officially listed as the instructor of record, he would consult with the Coach to verify that the student was a member of the Team and had attended the events and practices. Simek did not know if there was any written policy describing the manner in which the credits were issued, but he believed that there was some type of class or course description which outlined the criteria for obtaining credit. Simek testified that there are currently written requirements that mats be placed on the floor – even during games – if the Team is to perform stunts.

Defendant, as the movant on its motion for summary judgment, is required to set forth evidentiary facts in admissible form which establish its entitlement to dismissal of the claim as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).

It is well-settled 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” (Morgan v State of New York, 90 NY2d 471, 484 [1997]). A participant does not, however, assume the risks “which are ‘unreasonably increased or concealed’ ” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658 [1989] quoting McGee v Board of Educ. of City of N.Y., 16 AD2d 99, 102 [1962], appeal dismissed 12 NY2d 1100 [1963], lv denied 13 NY2d 596 [1963]).

A defendant may nonetheless be liable under the theory of “inherent compulsion” where an injured claimant participated in the sport or activity notwithstanding obvious and evident risks, “when the element of voluntariness is overcome by the compulsion of a superior” (Benitez v New York City Bd. of Educ., supra). In order to establish liability under the inherent compulsion doctrine, a claimant must prove that he or she acted at the direction of a superior, and under an economic compulsion or other circumstance that “impels” compliance with the directive (id., see Verduce v Board of Higher Educ. in City of N.Y., 9 AD2d 214, 219 [1959] [dissenting opn], revd on dissenting opn 8 NY2d 928 [1960]).

Defendant has set forth evidence that claimant had at least three years experience as a cheerleader prior to trying out for the Team. Further, based upon her testimony, claimant had performed the liberty stunt several times, both in high school and at BU prior to the date of her accident. Accordingly, claimant must be deemed to have been aware of the inherent risks of engaging in cheerleading, including falling on a hardwood floor. Claimant’s equivocal testimony during her deposition concerning her understanding of the issuance of academic credits is clearly insufficient to establish that she was under an inherent compulsion to continue with practice that evening. Moreover, no evidence was introduced which might have indicated that claimant would have been denied those credits if she had refused to continue practicing that evening. Defendant has therefore, on the face of its submission, met its burden of establishing entitlement to summary judgment dismissing the claim as a matter of law (see Rendine v St. John’s Univ., 289 AD2d 465 [2001]; Fisher v Syosset Cent. School Dist., 264 AD2d 438 [1999], lv denied 94 NY2d 759 [2000]).

The burden thus shifts to claimant to submit admissible evidence sufficient to create material issues of fact or credibility requiring a trial. In addition to the deposition testimony discussed previously, claimant provided an affidavit in support of her cross motion and in opposition to defendant’s motion. Claimant states that at some point early in the fall 2003 semester, before her accident, she was advised that by participating as a Team member, she would receive academic credits. Because of that understanding, claimant states that she attended every practice and performed in every event until she was injured on November 30, 2003. Claimant states that the pre-game practice, performance at the game, and the post-game practice on November 30, 2003 combined to form the longest cheerleading session of the year.

Claimant attempted some liberty stunts during the tryouts, but she was primarily a tumbler or spotter for the Team. Claimant states that toward the end of the practice session on November 30, 2003, the Coach told her to practice doing liberty stunts as a flyer, and to step into the stunt using her right foot. Previously, claimant had only stepped into the stunt using her left foot. Claimant states that during performance of the liberty stunt in which she was injured, she stepped in using her right foot, and the two bases and the back spotter lifted her up by holding that foot. Claimant indicates that “just as [the bases] got their arms extended over their heads, the stunt collapsed and [she] fell to the ground with [her] right foot striking the hardwood floor.” Claimant denies being dizzy or lightheaded while performing the stunt.

Gwen P. Holtsclaw, the founder and current Executive Director of the National Cheer Coach’s Conference, also provided an affidavit in support of claimant’s cross motion. Holtsclaw indicated that through her involvement with cheerleading at both local and national levels for decades, and participation in the design of national cheerleading competitions, she has become extremely familiar with generally accepted safety practices and standards. Based upon her review of the pleadings and deposition testimony, Holtsclaw opined that the Coach violated numerous standards of care specific to cheerleading, and by doing so, increased the risk of injury to the Team members, including claimant. She stated that because practicing stunts is the most physically demanding aspect of cheerleading, it is commonly accepted that such practice should take place near the beginning of any session, when the team is fresh. By having the Team practice their stunts toward the end of the post-game practice on November 30, 2003, Holtsclaw opined that the Coach clearly violated this accepted standard.

Further, Holtsclaw indicated that the proper procedure in practicing a stunt is to perform the stunt, and then take a short break – “not only to discuss what went right or wrong with the stunt, but to allow the team to physically recover sufficiently to attempt the next stunt safely” (Affidavit of Gwen P. Holtsclaw sworn to on May 21, 2008, ¶ 4 [b]). Holtsclaw opined that by both requiring claimant to perform 10 liberty stunts repeatedly without any break, and rotating different Team members into the stunt group as bases, the Coach compromised the stability of that group, which led to the collapse of the stunt and claimant’s fall.

Holtsclaw stated that the use of protective safety mats during competitions has been a basic safety precaution for some time. Although no NCAA (National Collegiate Athletic Association) or AACCA (American Association of Cheer Coaches and Advisors) definitive guidelines for the use of mats existed in November 2003, it is Holtsclaw’s opinion that “it was recognized and accepted in the industry that any Coach having access to mats should insist that they be used” (Affidavit of Gwen P. Holtsclaw sworn to on May 21, 2008, ¶ 4 [d]). She further stated that the use of mats was crucial in practices such as the post-game practice on November 30, 2003, particularly because of claimant’s inexperience and the rotation of the bases and spotters.

Holtsclaw also cited the Coach’s failure to have a front spotter as another violation of the applicable standards. She indicated that a front spotter in a liberty stunt not only assists in lifting and stabilizing the flyer during the lift process, but also in catching the flyer during the dismount. Holtsclaw opined that given the inexperience of the bases in claimant’s group, and claimant’s lack of practice as a flyer, a front spotter was required for claimant’s stunt.

Claimant has provided evidence creating a question of fact regarding whether protective mats were in use during the practice, and whether several Team members were sitting down due to fatigue. Holtsclaw’s expert affidavit is adequate to establish that the Coach’s actions in requiring claimant to repetitively practice stunts toward the end of the post-game practice and in failing to use protective mats may have been in violation of the accepted standards of cheerleading. The Coach’s testimony that the Team was using protective mats and claimant’s statements to the contrary clearly create questions of fact and of credibility. Similarly, claimant asserted that she questioned the Coach as to whether claimant should practice the liberty stunt at some later time, while the Coach denied the existence of this inquiry.

Further, in her affidavit, claimant clarified her understanding of the manner in which academic credits would be issued. Prior to her accident, claimant knew that she would receive two academic credits for participating on the Team, and therefore attended and participated in every practice and game. Claimant has thus created a question of fact as to whether the doctrine of inherent compulsion may apply in this case. Accordingly, defendant’s motion for summary judgment is denied.

Given the existence of questions of fact and credibility concerning numerous issues highly relevant to a determination of this claim, including whether claimant was subjected to unreasonably increased risks (such as practicing without mats), the Coach was negligent in her supervision of the Team (see Traficenti v Moore Catholic High School, 282 AD2d 216 [2001]), or claimant was under any inherent compulsion to practice (Smith v J.H. West Elementary School, 52 AD3d 684 [2008]; DeGala v Xavier High School, 203 AD2d 187 [1994]), claimant’s cross motion for summary judgment must be denied. Similarly, the existence of these questions of fact and credibility indicate that defendant’s affirmative defense of assumption of the risk may potentially have some merit. Accordingly, claimant’s alternate requested relief of dismissal of that defense must also be denied.

October 1, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion and claimant’s cross motion:

1) Notice of Motion filed on May 1, 2008; Affirmation of Joseph F. Romani, Assistant Attorney General (AAG), dated April 29, 2008, and attached Exhibits A through G.

2) Defendant’s Memorandum of Law dated April 29, 2008.

3) Notice of Cross Motion filed on May 27, 2008; Affidavit of Dana V. Chinitz sworn to on May 21, 2008; Affidavit of Gwen P. Holtsclaw sworn to on May 21, 2008, and attached Exhibits A through C.

4) Claimant’s Memorandum of Law dated May 23, 2008.

5) Affirmation in Opposition of Joseph F. Romani, AAG, dated June 11, 2008.

6) Reply Affidavit of Philip J. Artz, Esq., of counsel, sworn to on June 20, 2008.

7) Affirmation in Opposition of Joseph F. Romani, AAG, dated June 24, 2008.

8) Correspondence from Philip J. Artz, Esq. to the Office of the Chief Clerk dated June 26, 2008.

Filed papers: Claim filed on March 20, 2006; Verified Claim filed April 24, 2006.

[2]. A base is a Team member who lifts and supports another Team member known as a “flyer” during stunts.
[3]. A “flyer” is a Team member who is generally lifted into the air during stunts by the bases (see n 1, supra).
[4]. Claimant indicated that the team would have gone over which cheers and/or routines would be performed during the game, but she could not remember how long the practice lasted, other than that it was “[l]onger than 15 [minutes]” (Defendant’s Motion for Summary Judgment, Exhibit E, p 92).
[5]. Claimant could not remember with any degree of specificity how long the post-game practice lasted.
[6]. In a “liberty” stunt, the flyer is lifted and supported on one leg by the bases.
[7]. Putrino stated that a student could only obtain a maximum of two credits throughout his or her college career, regardless of how many times he or she took the course.
[8]. Simek indicated that members no longer received any academic credits for their participation on the Team.