SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

264 

CA 14-01388 

PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ. 

 

 

JOHN F. BOUCK, PLAINTIFF-RESPONDENT 

V MEMORANDUM AND ORDER

SKANEATELES AERODROME, LLC, DEFENDANT-APPELLANT. 

WILLIAMS & RUDDEROW, PLLC, SYRACUSE (MICHELLE RUDDEROW OF COUNSEL),

FOR DEFENDANT-APPELLANT.

MICHAELS & SMOLAK, P.C., AUBURN (MICHAEL G. BERSANI OF COUNSEL), FOR

PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Cayuga County (Thomas

G. Leone, A.J.), entered March 11, 2014. The order denied the motion

of defendant for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is granted,

and the complaint is dismissed. 

Memorandum: Plaintiff commenced this action to recover damages

for personal injuries and property damage sustained when he was

unsuccessful in his attempt to take off from the grass-surfaced runway

of defendant’s airport in his Cessna airplane. We agree with

defendant that Supreme Court erred in denying its motion seeking

summary judgment dismissing the complaint based on the doctrine of

primary assumption of the risk.

The incident occurred while plaintiff was piloting and attempting

a particular maneuver in the aviation field known as a “soft-field

take off.” Although it had not rained on the day of the incident, it

had rained for several days prior thereto. Upon reaching a speed of

approximately 50 miles per hour, the landing gear on plaintiff’s

airplane encountered a soft and/or wet area on the grass runway, and

the aircraft “dug in” and “tipped over,” causing damage to the

airplane and personal injuries to plaintiff. Prior to the incident in

question, plaintiff, a flight instructor and pilot with over 40 years

of experience, had utilized defendant’s grass runway in excess of 100

take offs and/or landings. Before attempting his take off, plaintiff

inspected the grass runway because of his concern that the grass

surface of it was soft and wet. Indeed, that is why he chose to

utilize the “soft-field take off” procedure.

We agree with defendant that its airport is a designated venue
-2- 264 

CA 14-01388 

for the recreational activity of private aviation and that plaintiff’s

use thereof was in furtherance of his pursuit of that activity (see

Custodi v Town of Amherst, 20 NY3d 83, 88-89). We thus conclude, as

defendant contends, that plaintiff’s recreational use of defendant’s

airport was a qualifying activity under the doctrine of primary

assumption of the risk (see id. at 88). Primary assumption of the

risk applies when a consenting participant in a qualified activity “is

aware of the risks; has an appreciation of the nature of the risks;

and voluntarily assumes the risks” (Bukowski v Clarkson Univ., 19 NY3d

353, 356 [internal quotation marks omitted]). “If the risks of the

activity are fully comprehended or perfectly obvious, plaintiff has

consented to them and defendant has performed its duty” (Turcotte v

Fell, 68 NY2d 432, 439). “[A]wareness of risk is not to be determined

in a vacuum. It is, rather, to be assessed against the background of

the skill and experience of the particular plaintiff” (Maddox v City

of New York, 66 NY2d 270, 278). The primary assumption of the risk

doctrine also encompasses risks involving less than optimal conditions

(see Sykes v County of Erie, 94 NY2d 912, 913). “It is not necessary

to the application of assumption of [the] risk that the injured

plaintiff have foreseen the exact manner in which his or her injury

occurred, so long as he or she is aware of the potential for injury of

the mechanism from which the injury results” (Maddox, 66 NY2d at 278).

Here, the undisputed facts establish that plaintiff, an

experienced pilot, was well aware of the risk inherent in taking off

from a soft, wet grass runway with the type of landing gear with which

his aircraft was equipped. Plaintiff’s awareness of the risk was

amply established by his admitted preflight concern about the

condition of the grass runway, and by his personal inspection thereof

generated in part by his encounter with wet and muddy conditions while

towing his aircraft to the runway by motor vehicle. Notwithstanding

his awareness and concern, plaintiff nonetheless elected to proceed

with his attempt to take off from the soft, wet grass runway. We

reject plaintiff’s effort to distinguish between the soft, wet grass

and the mud in which his landing gear wheels became lodged because it

is a matter of common experience that soft, wet grass following a

period of rain may result in the earth beneath the grass being turned

to mud (see id.).

In light of our determination, we need not address defendant’s

remaining contentions. 

Entered: June 19, 2015 Frances E. Cafarell

Clerk of the Court