New York Appellate Division Reports
MACHOWSKI v. GALLANT, 234 A.D.2d 933 [4th Dept 1996]
December 30, 1996
Supreme Court erred in granting defendants' motion for summary judgment dismissing this wrongful death action, arising out of the fatal heart attack suffered by plaintiff's husband (decedent) shortly after he completed the test for his black belt in karate. "Generally, whether the plaintiff assumed a risk by participating in a sport is a question for the jury; dismissal of the complaint is appropriate only when the proof before the court reveals no triable issue of fact" (Weller v. Colleges of the Senecas, 217 A.D.2d 280, 284; see also, Maddox v. City of New York, 66 N.Y.2d 270, 279). Although "`participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation'" (Lamey v. Foley, 188 A.D.2d 157, 163 quoting Turcotte v. Fell, 68 N.Y.2d 432,.439), a defendant generally has a duty to exercise reasonable care to protect participants from "`unassumed, concealed or unreasonably increased risks'" (Lamey v. Foley, supra, 188 A.D.2d, at 164, quoting Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 658). A videotape of decedent's black belt test indicates that decedent was exhausted and gasping for breath virtually from the outset of the test, yet defendant Kelly Gallant continued to urge him on. Plaintiff submitted an affidavit from an expert who avers that the test as designed by defendants was unnecessary and should have been stopped. Plaintiff also submitted a physician's affidavit from which a jury could conclude that the alleged deficiencies in the conduct and supervision of the test were a proximate cause of decedent's death (cf., Putrino v. Buffalo Athletic Club, 193 A.D.2d 1127, and 82 N.Y.2d 779). A jury could find that defendants, by failing properly to conduct and supervise the black belt test, thereby exposed decedent to unreasonably increased risks of injury (see, Sheehan v. Hicksville Union Free School Dist., 229 A.D.2d 10