Custodi v. Town of Amherst et al.
Oct 30, 2012OUTCOME: Affirmed on Appeal
Of the thousands of cases that I have been involved in, I think this case is noteworthy because it changed the status of the law throughout New York State. Ms. Custodi was rollerblading on a sidewalk ... in Amherst, NY. At some point, Ms. Custodi decided that she would enter the street down a private driveway. At the end of the driveway, there was a lip that was created due to the disrepair of the concrete. As a result, Ms. Custodi fell and suffered serious injuries. The case was sued in the New York State Supreme Court. The Defendant homeowner made a Motion for Summary Judgment asking the court to dismiss Ms. Custodi's case since she assumed the risk of rollerblading and falling. In opposition to that motion, I argued to the Supreme Court Judge that the doctrine of "Primary Assumption of the Risk" should only apply in cases where the activity is either a "sport" or if the activity is taking place in a venue that supports the activity (i.e. a skating rink or a park). The five judges of the Appellate Division in the Fourth Department voted in favor of my position (three judges agreed and two disagreed). As a result of the split decision, the issue was presented to the New York Court of Appeals in Albany (the highest court in New York State). The decision was affirmed and it is now recognized law throughout New York State that the Doctrine of Primary Assumption of the Risk is only applicable to people participating in sports and/or events at venues where leisure activity would be expected to take place. It will not absolve a homeowner from taking proper care of his or her property.