SHOULDN'T HE HAVE GOTTEN BACK ON?
Seventy-year-old, D.C., was riding the “Derby Race,” a carousel owned and operated by Westchester County, when he found himself unable to hold onto his horse and was propelled to the ground. After he later filed a personal injury case, the Westchester County Supreme Court dismissed the litigation.
On appeal, the Appellate Division, Second Department, noted that when people engage in a sporting or recreational activity they are consenting “`to those commonly appreciated risks which are inherent in and arise out of the nature of the . . . [activity] generally and flow from such participation.’”
Because D.C. testified that he “was aware of and appreciated the risks inherent in riding the Derby Racer, including the risk that he might fall off the ride if he was unable to hold himself on the wooden horse, and that he voluntarily assumed the risk,” the AD2 agreed that knowledge and acquiescence absolved the County of any liability, particularly in the absence of any “dangerous condition over and above the obvious risks.”
Of course, it helped that the County had posted appropriate warning signs that complied with state law, and “that all relevant safety measures were followed by the ride operators, including both a safety announcement and an individualized inspection of the injured plaintiff's position on the horse before the ride began.”
Hold your horses! There's no taking Westchester for a ride!
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DECISION