For an enhanced digital experience, read this story in the ezine.
In the case of Samuelsen v Wollman Rink Operations LLC, 2020 NY Slip Op 32702(U), 2020 N.Y. Misc. LEXIS 4643 (8/11/2020), the plaintiff alleged she sustained serious injuries as a result of a fall inside an ice rink managed and operated by defendants Wollman Rink Operations LLC and The Trump Organization, Inc., doing business as Trump Rink (collectively WRO/Trump).
Facts of the Case
Wollman Rink is an ice skating rink located in Manhattan’s Central Park in New York. It is open to the public and managed and operated by defendant WRO. A 2001 licensing agreement between Wollman Rink Operations, LLC, and the City of New York Department of Parks and Recreation granted WRO a license to operate and manage the rink. A 2010 amendment to the 2001 license agreement were both signed by Donald J. Trump as president of Wollman Rink Operations LLC. The 2010 amendment extended the license to April 30, 2021.
On December 11, 2014, the plaintiff, a recreational ice skater who had been taking ice skating lessons at Wollman Rink for several years, fell on the ramp used to enter and exit the rink as she attempted to leave the rink following one of her lessons. She claims to have suffered traumatic brain injury and other injuries as a result of the fall.
The plaintiff commenced her lawsuit on January 4, 2016, alleging that the defendants were negligent in failing to timely remove the ice from the ramp, failing to install and maintain matting on the ramp that was suitable for outdoor use and provided an even surface, and failing to provide a proper handrail near the ramp. The plaintiff claimed that at the point where the ramp meets the ice there were lumps of ice and uneven matting, which caused her skates to become caught and her to fall backwards and hit her head on the ice. In response to the plaintiff’s complaint, WRO/Trump raised assumption of the risk as an affirmative defense, which would preclude any liability.
In 2014, the plaintiff was taking lessons three days per week at the rink. On the day of the accident, as she entered the rink at about 7:30 a.m., she used the left rail because she saw snow and ice on the ramp. The plaintiff recalled seeing “bumps and lumps of ice” on the “entire bottom section” of the ramp, the portion without the rails. She did not slip nor fall going into the rink, but had to walk sideways, on her toe picks, due to the ice. She did not report the ice to anyone at the rink.
The plaintiff free skated for 30 minutes to warm up, then took a 30-minute private lesson. To exit the rink, she went back to the same ramp and stepped onto the bottom area near the ice. She saw it was still icy so, again, used her toe pick. Suddenly, her “blade caught something” and she was “up in the air.” Her head hit the ice when she landed, and she lost consciousness. An ambulance responded.
WRO/Trump Deposition Testimony
Dale Klied, director of operations for Wollman Rink Operations LLC, testified that he was the general manager of the rink on December 11, 2014. He recalled that he and other managers would direct their Zamboni drivers and skate guards, all operations department employees, to remove ice and snow from the matting on the ramp if they observed a hazardous condition. However, he could not recall if he was present at the rink on December 11, 2014, and he did not know the condition of the matting on the main ramp that morning.
Klied knew the plaintiff from the rink but “just to say good morning.” He did not recall if he was working on December 11, 2014, and only learned of the accident when his lawyer asked him for an incident report. A search was done, but no incident report was found. Klied checked with Elise Preston, his skate school director, who confirmed that the accident occurred. Preston had been notified of the accident by one of the coaches, David Ings. Klied did not recall if Preston provided any details of the accident and could not recall which year he spoke to her about it. Although there is a specific form used when an ambulance is called to the rink, no such report was found in regard to the plaintiff’s accident.
Raymond Garrity, the director of engineering for the Trump Organization for 17 years, was not an engineer. His highest level of education was high school plus “a couple of accounting courses at NYU” [New York University]. His duties included going to the rink “to make sure that the repairs or replacements requested by WRO are necessary.” Although he claimed to oversee any work done at Wollman rink for 17 years, Garrity knew the names of only three people there, including Klied.
At the start of each skating season, Garrity and the City Parks Department engineers would inspect the Wollman Rink facilities and mechanical equipment, including the refrigeration equipment that runs under the ramp. Garrity would review any proposed repairs prior to them being made, and again after to determine that they were done properly.
Between 2004 and 2014, Garrity was never informed by anyone from Wollman that the subject ramp needed repair. He did not recall any repairs in 2014 and neither he nor the Trump Organization had documentation showing whether he approved or disapproved any work in 2014.
Notice of Dangerous Condition
WRO/Trump also submitted affidavits from David Ings, the plaintiff’s skating coach, and Chantelle Trazyk, another skating instructor, who both worked at the rink but described themselves as self-employed. Ings coached the plaintiff for two years and was leaving the ice with her at the time of the accident. The plaintiff was behind him on the ramp when she fell and he did not observe any “ice, water or buckling/unevenness of the matting” at that location on the ramp” at any time that day.
Ings was at the rink since early morning and used that ramp five times that day, including seconds before the plaintiff fell. No one complained to him about ice on the ramp or the condition of the matting. If they did, he would have reported it to a rink employee. Traczyk similarly stated that she was at the rink from early morning and used the subject ramp twice that day prior to the plaintiff’s accident, the last time at 8 a.m. Traczyk was at her desk inside the building adjacent to the rink when the accident occurred, but went to the plaintiff when the accident was reported to her. Traczyk observed nothing unusual about the ramp the entire day, even when she responded to the plaintiff after her fall. Traczyk knew of no prior incident where someone fell on the ramp due to unevenness/buckling of the matting or accumulations of snow and/or ice.
WRO/Trump also submitted an expert affidavit from Bernard Lorenz, a licensed civil engineer, who inspected the site on November 11, 2019, and reviewed photographs, transcripts and other records. He concluded that the mats were designed to be used as ice arena perimeter flooring, that the mats he observed in 2019 were well-maintained, and the slope of the walking surface was safe.
In another affidavit, George Pfreundschuh, a licensed professional engineer and accident reconstruction consultant, concluded that the plaintiff fell due to a lump of ice on the ramp, and not the purportedly uneven matting. He reviewed documents, transcripts, photographs, weather data and “rubber matting information” and conducted a site inspection on December 12, 2019, five years after the accident. He relied upon information and representations provided to him at the inspection from Garrity that the ramp on which the plaintiff fell in 2014 was of the same construction, materials and configuration and in the same condition as the ramp that they examined on December 12, 2019.
Pfreundschuh opined that one continuous piece of matting covered the ramp in 2014, but that the outer perimeters of the mat could become displaced and allow for water seepage underneath that could freeze into ice. On this basis, Pfreundschuh concluded that “without any question of fact, plaintiff’s alleged accident was not caused by uneven matting.”
WRO/Trump argued that these submissions established its entitlement to summary judgment inasmuch as they demonstrated (i) WRO/Trump did not have actual or constructive notice of the lumps of ice on the ramp, and (ii) plaintiff, having seen the icy condition of the ramp, assumed the risks associated with skating while there was ice that may impede her ability to exit the rink.
Dangerous Condition Complaints
To demonstrate WRO/Trump did indeed have knowledge of the dangerous condition of the ice rink, the plaintiff submitted affidavits and deposition testimony from other regular skaters at Wollman Rink. All of these skaters asserted they regularly observed and complained to WRO/Trump about the poor condition of the ramp prior to the plaintiff’s accident.
In her affidavit dated July 2015, Deborah Weatherbee-Shulman stated that she had skated at the rink for years and she was present at the rink at the time of the accident and saw the plaintiff lying on the ice. Wetherbee-Shulman recalled that the ramp was covered with “a series of loose overlapping rubber mats that form an uneven surface, where water, patches of ice and clumps of ice form, depending on weather conditions.” On December 11, 2014, she saw “icy, lumpy, uneven ice conditions” on the ramp where the plaintiff fell. According to Weatherbee-Shulman, she had complained to the skating coaches and rink management for many years about the ramp conditions.
Catherine Sweeney, another frequent skater at the rink who was also present at the time of the accident, just three feet away, saw and heard the plaintiff’s head hit the ice, making a loud thud sound. Earlier that morning, Sweeney had complained to other skaters about the condition of the ramp, which she testified was dislodged and uneven where it met the ice and was covered in ice. She explained that this condition would cause the skaters to take a longer step to get onto the mat to avoid the raised and icy areas. Sweeney testified that complaints about the ramp were “a common occurrence.”
Douglas Eaton, a retired federal magistrate judge and avid skater, frequented the rink for many years, including 2014, and knew the plaintiff. A number of times each season, he would observe ice forming on top of and underneath the rubber mat on the ramp and create an uneven surface. Three or four times each season, he would report the condition to the person at the sign-in desk, Elise Preston being one of them and an employee named Susie being another. Eaton had observed rink staff working on the ramp to address those conditions during the 2014 skating season. He recalls workers chipping ice out from underneath the front edge of the rubber mat, which had become raised due to the ice accumulation underneath. Eaton testified that the condition was made worse by the absence of railing the last five feet before the ice. The staff would, sometimes, put up orange cones in response to his complaints. Eaton was not present on the morning of the plaintiff’s accident.
The plaintiff also submitted an affidavit from John Burley, an expert in the field of ice rink operations, who had 40 years’ experience with ice rink/arena design, manufacturing and operation. Burley reviewed the deposition testimony, photographs, available records and other documents. He concluded that WRO/Trump failed to properly maintain the ramp. He explained that the lumps of ice on the ramp and underneath the matting likely formed due to the rink’s refrigeration system, which consisted of piping underneath the rink at temperatures well below freezing, in order to maintain the ice on the rink. In Burley’s opinion, the ice would have been present on the rubber matting for hours, if not days, and therefore, WRO/Trump staff should have noticed and cleared or removed the ice.
As cited by the court, the following “rules concerning premises liability are well settled”:
A landowner has a duty to maintain premises in a reasonably safe condition. Landowners may be held liable for failing to maintain premises if they either created a dangerous condition thereon or had actual or constructive notice thereof within a sufficient time prior to the accident to be able to remedy the condition.
Further, the court noted that “summary judgment is warranted only where a defendant can establish that it did not have either actual or constructive notice of the dangerous or defective condition.” Moreover, to constitute “constructive notice,” the court acknowledged that “a defect must be visible and apparent, and must exist for a sufficient length of time prior to the accident, to permit defendant’s employees to discover and remedy it.”
Within the context of a “premises designed for sport or recreational activity,” the court stated the specific issue was “whether a defendant’s action or inaction creates a dangerous condition over and above the usual dangers inherent to the sport or recreational activity.” Moreover, according to the court, the existence of a dangerous or defective condition in a sport or recreational activity would depend on “the peculiar facts and circumstances of each case and is generally a question of fact for the jury.” As a result, such cases would more likely proceed to trial as opposed to being effectively dismissed pretrial on a motion for summary judgment.
Dangerous Condition Evidence
Applying these principles to the pretrial evidence in this particular case, the court found the plaintiff’s proof raised triable issues as to whether (i) the ice that formed on or beneath the matting and lack of proper handrails constitutes a dangerous condition over and above the general dangers inherent to ice skating, and (ii) whether those conditions, particularly the ice accumulations, were in existence long enough or often enough that WRO/Trump had actual or constructive notice of the condition.
Moreover, the court found WRO/Trump had failed to establish that it did not have actual or constructive notice of the lumps of ice and uneven matting alleged by the plaintiff. As characterized by the court, the affidavits of Ings and Trazyk merely demonstrated that at least two individuals did not see nor report any dangerous conditions to WRO/Trump on the day of the accident. Accordingly, the court rejected WRO/Trump’s contention that these affidavits somehow conclusively demonstrated that the rink was free from any lumps of ice or uneven matting throughout the morning of the plaintiff’s accident. Further, the court found this evidence did not establish that “any dangerous condition that may have led to the plaintiff’s injuries was unknown to WRO/Trump and, thus, could not be remedied.” On the contrary, the court found the pretrial evidence indicated the plaintiff would be able to establish that WRO/Trump had actual or constructive notice of a dangerous condition.
In light of such evidence, the court concluded it would be inappropriate to grant WRO/Trump’s motion for summary judgment since the pretrial evidence failed to conclusively establish the lack of a dangerous condition.
Assumption of Risk Defense
In this particular instance, WRO/Trump had raised the assumption of risk defense. As cited by the court, within the context of this particular case, the doctrine of assumption of the risk is defined as follows:
[B]y 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. The duty owed in these situations is a duty to exercise care to make the conditions as safe as they appear to be. Nevertheless, a participant will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks. Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks.
Moreover, the court acknowledged: “Application of the assumption of risk doctrine requires that the plaintiff have knowledge of the injury-causing defect, but also appreciation of the resultant risk.” According to the court, such awareness of risk is “not to be determined in a vacuum,” but “whether a defendant’s action or inaction creates a dangerous condition over and above the usual dangers” inherent to the sport or recreational activity. In addition, assumption of risk is to be “assessed against the background of the skill and experience of the particular plaintiff.” Further, the court noted: “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results.”
Appreciation of Risk
In this particular instance, WRO/Trump had argued that slipping and falling on ice, including when entering or exiting the rink, is an inherent risk of ice skating, assumed by the skater, thus they should be shielded from liability. The court, however, rejected this argument given the circumstances of this particular case. In so doing, the court noted: “it is well settled that the doctrine of assumption of risk does not serve to bar liability where the risk is unassumed, concealed, or unreasonably increased.”
On the appreciation of risk requirement, the court found WRO/Trump’s pretrial submissions failed to establish its entitlement to summary judgment on its assumption of the risk defense. Specifically, the court found WRO/Trump had failed to establish that the plaintiff had an “appreciation of the resultant risk” that the icy conditions posed, particularly that the icy conditions could cause the plaintiff’s skates to get stuck when attempting to leave the area. On the other hand, the court found the plaintiff’s deposition testimony did establish that the plaintiff observed the poor conditions of the ramp, including the ice accumulation and uneven matting, prior to her ice skating lesson. Accordingly, the court acknowledged this pretrial evidence could support an inference that the risks stemming from the accumulated ice were “fully comprehended or perfectly obvious.”
On balance, however, the court found the pretrial evidence in this case might indicate that WRO/Trump had created a dangerous condition, which unreasonably increased “the potential risks beyond the scope of what is contemplated when ice skating.” In so doing, the court took particular note of Burley’s expert affidavit that raised a question as to whether “WRO/Trump’s failure to clear or remove the ice from on and under the matting” had created a dangerous condition that unreasonably increased the potential risks beyond the scope of what is contemplated when ice skating.
Accordingly, in light of such pretrial evidence that the allegedly dangerous condition of the ice rink might have increased the inherent risks associated with ice skating, the court denied WRO/Trump’s motion for summary judgment based on the defense that the plaintiff had necessarily assumed the risk.
Having reviewed the pretrial evidence of premises liability and assumption of risk, the court concluded WRO/Trump was not entitled to summary judgment, effectively dismissing the plaintiff’s lawsuit. Further, the court ordered that “the parties are to contact chambers on or before October 30, 2020, to schedule a settlement conference.” If a settlement could not be reached, the case would then proceed to a jury trial. During further trial proceedings, a jury would fully consider the plaintiff’s allegations of negligence and premises liability, in addition to WRO/Trump’s claim that any liability was precluded by the assumption of risk defense.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University (email@example.com). Webpage with link to law review articles archive (1982 to present): mason.gmu.edu/~jkozlows.