Practice point: The injured plaintiff is a music teacher who was directing a school marching band during a parade that took place on a public street. While directing the band, plaintiff, who was required to walk backwards, allegedly fell due to a defect in the roadway and was injured. Defendant municipality moved to dismiss, invoking the doctrine of primary assumption of the risk, and the Appellate Division affirmed the motion court's denial of the motion.
The Appellate Division found that the doctrine is inapplicable in this case, as it cannot be said that by leading a marching band in a parade on a public street, the injured plaintiff consented to the alleged negligent maintenance of the street by the County. Extending the doctrine to cases involving persons injured while traversing streets and sidewalks would create an unwarranted diminution of the general duty of both public and private landowners to maintain their premises in a reasonably safe condition.
Student note: As defendant failed to make out a prima facie case for entitlement to summary judgment, the sufficiency of opposing papers need not be considered.
Case: Behr v. County of Nassau, NY Slip Op 00485 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: A defendant's summary judgment motion in a slip-and-fall action.
