Court Determines Whether Plaintiff Assumed the Risk
Aisha Gillard alleged that while attending a birthday party at Le Rev, a hookah lounge, a hookah that contained a bowl with burning coals fell on her, causing injuries to her chest. According to Gillard, the hookah had been placed on the table in front of her and was knocked over by patrons who were dancing nearby. Litigation ensued. Le Reve moved for summary judgment dismissing Gillard’s complaint. Supreme Court denied the motion. Le Rev appealed.
Supreme Court properly rejected Le Rev’s argument that the assumption of risk doctrine was applicable to the facts of this case. The doctrine is generally limited to personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic or recreational pursuits that take place in designated venues. The retention of the doctrine is most persuasively justified for its utility in facilitating free and vigorous participation in athletic activities that possess enormous social value, even while they involve significantly heightened risks that may be voluntarily assumed to preserve the beneficial aspects of sports as against the prohibitive liability that would otherwise arise.
Here, the hookah lounge was clearly not a sports venue and Gilliard was not engaged in a sporting activity. Although attending a birthday party may be viewed as a recreational activity, the activities at Le Rev did not possess the beneficial aspects of sports that courts have found as justification for the continued applicability of the doctrine. Le Rev’s duty to Gilliard was to maintain its facility in a reasonably safe condition in view of all the circumstances.
And even if the doctrine were applicable, a person who chooses to participate in a sport or recreational activity consents to certain risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. A court evaluating the duty of care owed to a plaintiff by a coparticipant in sport must therefore consider the risks that the plaintiff assumed and how those assumed risks qualified defendant’s duty to her. However, a plaintiff will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks.
Thus, Le Rev had a duty to Gilliard to ensure that the hookah did not present unusual risks to her as it was not placed on the floor, the “preferable” location according to the venue’s owner, and to ensure that there was a sufficient distance between the crowd on the dance floor and the table where the hookah was placed. Further, Le Rev presented no evidence that Gilliard was aware of the danger that she would be burned by the hot coals if the hookah was knocked over, and she denied knowledge of the risk.
The order of Supreme Court that denied Le Re’s motion for summary judgment dismissing Gilliard’s complaint was affirmed.