Fourth Department Further Clarifies Assumption of Risk Doctrine in Dart Case

The New York Supreme Court, Appellate Division, Fourth Department affirmed a trial court order that denied the defendants’ motion for summary judgment in a personal injury case involving a dart board at a bar.

Mooney’s Sports Bar & Grill is owned by McCann’s, Inc. Daart Amusement is a company that manufactures and services dart boards for bars and restaurants. Daart installed a dart board at the sports bar. One day, the plaintiff was at Mooney’s, standing near the dart board. A patron playing darts threw a dart at the dart board, which then struck the plaintiff. The plaintiff filed a personal injury lawsuit against McCann’s and Daart.

Both defendants filed a motion for summary judgment, requesting that the complaint be dismissed. In its motion, McCann’s argued that the plaintiff’s claim was barred under the doctrine of assumption of risk. The trial court rejected this argument and denied McCann’s motion for summary judgment. McCann’s also argued that the plaintiff was the sole proximate cause of his injuries, but because McCann’s failed to include an affidavit or affirmation supporting this contention, the court declined to consider the argument.

Daart argued that it did not owe a duty of care to the plaintiff or that if it did, it had not breached this duty. The court also rejected this argument, holding that there was insufficient evidence proffered by Daart to prove this defense.

Regarding assumption of risk, the Court of Appeals has long held that the doctrine is reserved for only certain circumstances. Some activities are inherently dangerous because they carry a high risk of accident. However, these activities also have tremendous social value. These activities include scuba diving, private flying lessons, and wrestling. New York law bars any personal injury claims arising from these activities. To determine if an activity qualifies, it must either be: (1) sponsored or supported by the defendant, (2) an organized recreational or athletic activity, or (3) held in a designated venue.

The game of darts is not a qualified activity. The game of darts is not an organized athletic activity nor is it played in a designated venue like a sports arena. In addition, it is not sponsored or supported by the defendant. While the defendant does provide access to the dart board at its establishment, it does not oversee the game. In addition, darts is not known to be an inherently risky game.

Because darts is not a qualified activity under the doctrine of assumption of risk, the Fourth Department agreed that McCann’s had failed to establish that the plaintiff had assumed the risk. McCann’s may have had a decent argument regarding proximate cause. However, by not including supporting evidence, the Fourth Department also declined to consider this argument.

Regarding Daart’s duty of care: the plaintiff’s complaint is founded upon the doctrine of premises liability. Under the doctrine, property owners are liable for dangerous conditions on their property that create a dangerous condition or defect that they are aware of. The injuries that arise from this dangerous condition must be foreseeable. A property owner is someone who has “occupancy, ownership, control or a special use of [the] premises.” While McCann’s clearly owns the sports bar, there is an issue as to whether Daart qualifies as a property owner for purposes of premises liability. Daart argues that it does not.

When a defendant argues in a motion for summary judgment that it is not a proper party to the lawsuit, it must use sufficient evidence to demonstrate this. Here, Daart failed to establish that it did not owe a duty of care to the plaintiff. In its motion, it must prove this to prevail. Because it failed, denial was proper. However, this does not mean that the plaintiff will be able to prove that Daart owes a duty of care at trial.

If you or a loved one was injured while on someone else’s property, whether a home or business, you may have a valid premises liability claim. Consult with the skilled personal injury attorneys at the Law Offices of Thomas L. Gallivan, PLLC today to review your negligence case.

Weierheiser v. McCann’s, 284 CA 14-01684 (4th Dept. 2015).

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