Volume 235
Copyright 2006 ALM Properties, Inc. All rights reserved.
Thursday, June 22, 2006
DECISIONS OF INTEREST
Westchester County Supreme Court
Absence of Medical Personnel Did Not Increase Risk of Heart Attack; Decedent
Assumed the Risk Justice Nicolai
FAZZINGA v. WESTCHESTER TRACK CLUB, 1379/04--Plaintiffs contend that this motion is late as it was served one day beyond the applicable 60-day period for filing a summary judgment motion. However, the Appellate Division, First Department, has held in several cases that where the note of issue was served on defendants by mail, defendants are entitled to an additional five days (pursuant to CPLR 2103[b]) in which to serve their motion for summary judgment. As the Court's research reveals that there are no Second Department cases which have addressed this issue, this Court is bound by the rule set forth in the First Department cases which are cited by defendants. In this case the note of issue was served by mail, affording defendants an additional five days in which to make their motion, and this motion is therefore timely (Krasnow v. JRBG Mgt. Corp., 25 A.D.3d 479[1st Dep't 2006]); Luciano v. Apple Maintenance Services, 289 A.D.2d 90 [lst Dept., 2001];(Szabo v. XYZ, Two Way Radio Taxi Association, Inc., 267 A.D.2d 134 [lst Dept., 1999].
For Plaintiff: Meagher & Meagher
For Defendant: De Yoe Heissenbuttel, LLC, (Westchester Track Club, Westchester Road Runner club, Inc., and Pepsico, Inc.)
Siler & Ingber,LLP (Harrison Volunteer Ambulance Corp.)
This is a wrongful death action arising as a result of the death of Timothy Fazzinga, who collapsed almost immediately after crossing the finish line of a 5 Kilometer foot race and died shortly thereafter. The race was sponsored by defendant PepsiCo and organized by defendant Westchester Road Runner Club on the campus of SUNY Purchase in June 2003.
There was no statutory duty to provide medical assistance at the race. State regulations mandate that there must be emergency medical services, including an on site ambulance or ambulances, at functions where attendance is greater than 5,000 people (New York State Sanitary Code, Chapter 1, Title 10, Part 18). The subject race had about 175 participants. Nevertheless, plaintiffs allege that movants were negligent in failing to have an ambulance or other emergency medical assistance available at the site on the day of the race. Movants contend that Timothy Fazzinga assumed the risk of participation in the sport.
'The risk assumed has been defined a number of ways but in its most basic sense it 'means that the plaintiff, in advance, has given his... consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence' (cites omitted)'' (Turcotte v. Fell, 68 N.Y.2d 432, 438 [1986]).
'The doctrine has been divided into several categories but as the term applies to sporting events it involves what commentators call 'primary' assumption of risk. Risks in this category are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant's duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty (cites omitted)' (Turcotte v. Fell, 68 N.Y.2d at 438-439). 'Under this analysis, assumption of the risk is a measure of the defendant's duty of care' (Turcotte v. Fell, 68 N.Y.2d at 439).
'Therefore, in assessing whether a defendant has violated a duty of care within the genre of tort-sports activities and their inherent risks, the applicable standard should include whether the conditions caused by the defendants' negligence are 'unique and created a dangerous condition over and above the usual dangers that are inherent in the sport' (cites omitted). A 'showing [of] some negligent act or inaction, referenced to the applicable duty of care owed to him by [the] defendants, which may be said to constitute 'a substantial cause of the events which produced the injury' is necessary (cites omitted)' (Morgan v. State, 90 N.Y.2d 471, 485-486 [1997]).
Timothy Fazzinga had a history of high cholesterol, for which he was taking medication since 1997. A February 7, 2000 note in his medical records indicates he had a slightly abnormal stress test. He also had a family history of cardiac problems. The cause of death as found on autopsy was occlusive coronary atherosclerosis (the left coronary artery was narrowed to 70 percent and the right arteries were narrowed to 40-50 percent). In the release signed by him he states that he is physically fit and his physical condition had been verified by a doctor, although he apparently had not consulted with a physician prior to entering the race and had not seen his physicians since January 2002.
Mr. Fazzinga collapsed within seconds of passing the finish line. He received CPR aid from his wife and bystanders, and campus police arrived approximately 20 minutes later with an automatic external defibrillator which was used by a bystander, an off duty EMT, to try to revive him. Five minutes thereafter, an ambulance from Harrison Volunteer Ambulance Corps. arrived. He could not be revived.
'Defendant's duty...is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty (cites omitted) (Turcotte v. Fell, 68 N.Y.2d at 438-439). Plaintiffs concede that Mr. Fazzinga assumed the risk of a cardiac event occurring at the race, but contend that he did not assume the risk of death arising from untimely emergency medical treatment which plaintiffs allege is a risk which is not inherent in running a 5K foot race.
Plaintiff's decedent assumed the risk of having a heart attack. The absence of an ambulance or medical personnel on the site did not increase the risk of that injury. As to plaintiffs' argument that Mr. Fazzinga did not assume the risk of death arising from untimely medical treatment, the absence of an ambulance or emergency medical personnel at the site was 'perfectly obvious.'
In addition, Timothy Fazzinga had signed a release waiving and releasing any and all rights and claims for damages against Westchester Track Club and 'any and all sponsors and their representatives...' for any and all injuries suffered by him in the event. Plaintiffs contend that the release is void pursuant to General Obligations Law § 5-326. This section is inapplicable as the event, which was held on the university campus, did not take place in a 'place of amusement or recreation, or similar establishment...' (See e.g. Tedesco v. Triborough and Tunnel Authority, 250 A.D.2d 758 [2d Dept., 1998]).
The action is also dismissed as against defendant PepsiCo. PepsiCo provided financial assistance, beverages, and banners, but had no involvement in the event. 'Mere sponsorship, absent control' does not render a sponsor legally responsible (Vogel v. West Mountain Corp., 97 A.D.2d 46[3d Dep't 1983]).
Accordingly, defendants Westchester Track Club, The Westchester Road Runner Club, Inc., and Pepsico Inc. shall have judgment dismissing the complaint against them.
6/22/2006 NYLJ 28, (col. 1)
END OF DOCUMENT
A car slammed into a house in Garden City Park on Long Island killing the driver and seriously injured two others. The deadly crash happened at around 2:30 a.m. on Thursday on Broadway and 5th Avenue. According to the Nassau County Police Department, the car was speeding westbound on Broadway when it failed to stop at a stop sign and struck the house on 5th Avenue. Police pulled the male victim's body that was stuck out of the car just before 6 a.m.
