Verduce v. Board of Higher Education

9 A.D.2d 214, 192 N.Y.S.2d 913, 1959 N.Y. App. Div. LEXIS 5987

Opinions

McNally, J.

In an action for personal injuries, loss of services and medical expenses, plaintiffs appeal from the judgment dismissing the complaint. On the trial, the action was discontinued against defendants Welch and Turnau.

Plaintiff Rosalie A. Verduce voluntarily enrolled for a noncredit course denominated the Hunter College Opera Workshop which was conducted under the auspices of the defendant-respondent Board of Higher Education in the City of New York. The group under the direction of the defendant Turnau undertook the performance of the opera “Xerxes”. During a rehearsal of the opera, the said plaintiff was directed to make a ‘ ‘ haughty ’ ’ exit without looking down, which involved stepping down 20 inches from the stage to the auditorium floor. In the act of so doing, plaintiff’s left foot twisted causing her to sustain the injuries complained of. Prior to stepping down, plaintiff protested that to do so without looking down was dangerous. The defendant Turnau, however, admonished the plaintiff that to look down would constitute a failure to comply with his direction and result in her loss of the role. The loss of the role would not have disqualified the plaintiff from other participation in the workshop.

Plaintiffs’ evidence establishes the injured plaintiff knew of the physical condition complained of and the risk of injury attendant upon the attempt to step down from the platform to the floor of the auditorium without looking down. Immediately prior to the occurrence, when directed by defendant Turnau to proceed with “ head up ”, plaintiff remonstrated: “ Professor, I will break my neck ’ ’, to which Turnau responded: ‘ ‘ Well, you must do this or you will lose the part.” Several weeks prior to the accident, in response to the injured plaintiff’s expression of fear of the necessity of stepping from the platform down to the floor without looking down, Turnau said: “ You must not be afraid; it is all right.”

At the close of the plaintiffs’ proof, defendant-respondent Board of Higher Education in the City of New York moved to dismiss the complaint for failure to make out a prima facie case, failure of the plaintiffs to establish freedom from contributory negligence, and on the further ground that the injured plaintiff assumed the risk of the condition and accident complained of. After extended argument on the said motion, the learned trial court granted the motion and dismissed the complaint.

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We find no factual issue on liability present, and, therefore, conclude the dismissal and judgment thereon are, proper. The record demonstrates knowledge on the part of the injured plaintiff of the danger consequent upon stepping down from the platform to the floor of the auditorium and her knowing exposure to the said danger. The said plaintiff did not rely upon the statements of Turnan, which did not carry any assurance that the danger was any less than it appeared. A reasonable person would not rely upon the statements. (Utica Mut. Ins. Co. v. Amsterdam Color Works, 284 App. Div. 376, 379, affd. 308 N. Y. 816.) Here is not involved an unanticipated fall. (Cf. Zurich Gen. Acc. & Liab. Ins. Co. v. Childs Co., 253 N. Y. 324, 328.) That which the injured plaintiff anticipated and articulated did, in fact, materialize; her motive to preserve her role in the opera “ Xerxes ”, although professionally and artistically justifiable, does not legally excuse the failure to exercise reasonable care in regard to her safety.

The judgment should be affirmed, with costs.

Plaintiffs did not, before the trial court nor in their brief on this appeal, advance as a bar to the motion to dismiss based on assumption of risk the respondent’s failure to plead it as a defense. Plaintiffs did not claim surprise nor did it appear they were surprised by the motion to dismiss insofar as it was grounded on assumption of risk. The parties argued fully and extensively, addressing themselves to each of the bases for dismissal of the complaint stated and relied on by the respondent. Moreover, we are not here concerned with the burden of proof. If plaintiffs’ evidence presents an issue of fact as to liability, then the dismissal is erroneous.