Fourth Department – Primary assumption of risk: Puccio v. Boy Scouts of America

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Primary assumption of risk

Sledding – Unreasonably increased risk of danger

Puccio v. Boy Scouts of America

CA 21-00229

Appealed from Supreme Court, Erie County

Background: The plaintiff commenced an action seeking damages for injuries sustained while sledding at an event organized by a Cub Scout pack for its members and their families. The plaintiff, a den leader for the pack, attended the event with his son. One hour into the event, the plaintiff sledded down a hill to retrieve a sled left at the bottom of the hill by his son. When his sled came to a stop, he was struck in the face by a boot of a minor participant who was sledding the down the hill. All defendants, except the defendant Cub Scout pack, which was alleged not to be a legal entity, moved for summary judgment seeking to dismiss the complaint. The plaintiff appealed from the grant of the motions.

Ruling: The Appellate Division affirmed. The court held that primary assumption of risk applied as the plaintiff was a consenting participant. He had observed the sledding activity for an hour prior to the accident and he had instructed his son to watch out for sleds coming down the hill as he walked back up the hill. The court further held that the plaintiff was not exposed to an unreasonably increased risk of injury as he was in the same supervisory role as those defendants who he claimed failed to provide proper supervision. Further, he did not instruct the participants regarding any sledding safety rules.

Bryan Daniels, of Ricotta, Mattrey, Callocchia, Markel & Cassert, for the plaintiffs-appellants; David M. Stillwell, Melissa L. Vincton, of Penino & Moynihan, and Justin L. Hendricks, of Kenney Shelton Liptak Nowak, for the defendants-respondents.