9 A.D.3d 276, *; 779 N.Y.S.2d 484, **;

2004 N.Y. App. Div. LEXIS 9170, ***

Frank Van Buren, Plaintiff-Respondent, v. Worby Borowick Groner, LLP, et al., Defendants-Appellants.

4054

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

9 A.D.3d 276; 779 N.Y.S.2d 484; 2004 N.Y. App. Div. LEXIS 9170

July 1, 2004, Decided

July 1, 2004, Entered

NOTICE: [***1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE RELEASE OF THE FINAL PUBLISHED VERSION.

PRIOR HISTORY: Van Buren v. Worby Borowick Groner LLP, 2004 N.Y. App. Div. LEXIS 3654 (N.Y. App. Div. 1st Dep't, Mar. 25, 2004)

CASE SUMMARY

PROCEDURAL POSTURE: Defendants a law firm and others, sought review of a decision of the Supreme Court, New York County, New York, which denied defendants' motion for summary judgment dismissing the complaint. Plaintiff former client had filed an action against defendants for legal malpractice.

OVERVIEW: The client alleged that he was injured in a slip and fall incident that occurred on a wet deck of a cruise ship while the client was playing basketball. The client retained the law firm to file a personal injury action against the cruise ship and others, but the law firm allegedly had not filed the action before the applicable statute of limitations had expired. Defendants contended that they were entitled to summary judgment because the client's claims would have been barred by the doctrine of assumption of risk. Affirming the denial of summary judgment made by the lower court, the court noted initially that it was undisputed that the client's claims against the cruise line would have been governed by Florida law. Florida law did not recognize assumption of risk as a complete defense to actions involving sports injuries unless the risk was inherent in the sport itself. The client's fall on a basketball court caused by slickness from mist or rain was not a risk inherent in basketball, and a Florida court would therefore have apportioned fault. Issues of fact also existed as to the client's underlying claim based on the medical treatment he received on the ship.

OUTCOME: The court affirmed the decision of the trial court.

CORE TERMS: ship, basketball, cruise line, assumption of risk, passenger, doctor, sport, wet

LexisNexis(R) Headnotes Hide Headnotes

Torts > Negligence > Defenses > Comparative & Contributory Negligence

Torts > Negligence > Defenses > Assumption of Risk

HN1 Under Florida law, assumption of risk is not a complete defense to actions involving sports injuries unless the risk is inherent in the sport itself. A fall on a basketball court caused by slickness from mist or rain is not a risk inherent in basketball, and a Florida court would therefore apportion fault between the parties on the basis of comparative negligence. More Like This Headnote

COUNSEL: Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellants.

Law Offices of William S. Greenawalt, New York (William S. Greenawalt of counsel), for respondent.

JUDGES: Ellerin, J.P., Williams, Lerner, Sweeny, JJ.

OPINION: [*276] [**484] Order, Supreme Court, New York County (Marilyn Shafer, J.), entered February 25, 2003, which, in an action for legal malpractice, denied defendants' motion for summary judgment dismissing the complaint, [**485] unanimously affirmed, without costs.

Plaintiff, a passenger on a cruise ship, was playing basketball on the ship's outdoor court in a light, misty rain when he slipped and fractured his wrist. Plaintiff was examined by the ship's physician, who, inter alia, gave him painkillers and advised him to see his own doctor when he returned to New York in four days. Upon arriving in New York, plaintiff immediately went to the hospital, where, inter alia, a fracture was diagnosed and four days later plaintiff had surgery. Plaintiff alleges that the ship was negligent in permitting passengers to play basketball on a wet deck without any [***2] warning signs or other protective measures; that the ship's physician committed medical malpractice by not advising him to go to the hospital in St. Maarten where the ship was docked; that he retained defendant law firm four months after the accident to prosecute these claims against the ship's cruise line; and that defendants failed to commence an action against the cruise line within the applicable statute of limitations. There is no dispute that plaintiff's claims against the cruise line are governed by Florida law, under which, defendants argue, the claim based on the wet basketball court could not have succeeded because of the doctrine of assumption of risk. That argument lacks merit because, HN1under Florida law, assumption of risk is not a complete defense to actions involving sports injuries unless the risk is inherent in the sport itself (compare Kuehner v Green, 436 So. 2d 78, 80 [Fla], with Ashcroft v Calder Race Course, 492 So. 2d 1309, 1311 [Fla]), a fall on a basketball court caused by slickness from mist or rain is not a risk inherent in basketball, and a Florida court would therefore have apportioned fault between plaintiff [*277] and the [***3] ship on the basis of comparative negligence (cf. Mazzeo v City of Sebastian, 550 So. 2d 1113, 1116-1117 [Fla]), as to which issues of fact exist. Issues of fact also exist as to plaintiff's underlying claim based on the medical treatment he received on the ship, including whether his injury was treated by the ship's doctor in accordance with the standard of practice accepted in the community (see Salinetro v Nystrom, 341 So. 2d 1059, 1061 [Fla 3d Dist Ct App]), exacerbated by the lack of treatment during the four days after the accident and before the ship's arrival in New York, and could have been treated onshore. We have considered defendants' other arguments and find them unavailing.

ENTERED: JULY 1, 2004