Affirmed and Memorandum Opinion filed February 6, 2014.

In The

Fourteenth Court of Appeals

NO. 14-12-00650-CV

PAUL Z. POCHRON AND DEBORAH POCHRON, Appellants

V.

LAWRENCE S. OLEKSY, Appellee

On Appeal from the 434th Judicial District Court

Fort Bend County, Texas

Trial Court Cause No. 08-DCV-164803

M E M O R A N D U M O P I N I O N

Paul Z. and Deborah Pochron appeal a take-nothing judgment rendered 

against them in their personal injury lawsuit against Lawrence S. Oleksy. We 

affirm. 

BACKGROUND

This case arises out of a snowmobiling accident that occurred in upstate 

New York. Paul Pochron, Lawrence Oleksy, Mike Brehm, Scott Buyea, and John 
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Donovan frequently operated snowmobiles together. All except Oleksy were 

highly experienced snowmobile drivers. 

The five riders departed from Brehm’s sister’s house on February 2, 2007, 

and rode during the morning without incident. At some point in the afternoon, 

Oleksy passed the rider between himself and Pochron; in so doing, Oleksy ran into 

the side of Pochron’s snowmobile. Pochron suffered severe fractures of his tibia 

and fibula as a result of the impact. 

Pochron and his wife sued Oleksy, individually and d/b/a Richland 

Construction, on June 16, 2008. Paul Pochron sued for damages as a result of 

bodily injuries; Deborah Pochron sued for loss of consortium and loss of 

household services. Oleksy filed an unopposed motion for choice-of-law 

determination and judicial notice of New York law. The trial court signed an order 

determining that New York law would govern the substantive issues of the case. 

A jury trial was held beginning July 26, 2011. The jury found that Oleksy 

was negligent, and that his negligence was a proximate cause of Paul Pochron’s

injuries. The jury awarded the following sums to Paul Pochron: (1) $10,000 for 

past physical pain and mental anguish; (2) $0 for future physical pain and mental 

anguish; (3) $71,000 for past loss of earning capacity; (4) $5,000 in lost future 

earning capacity for five years; (5) $0 for past disfigurement; (6) $0 for future 

disfigurement; (7) $0 for past physical impairment; (8) $0 for future physical 

impairment; and (9) $38,380.76 for medical expenses. The jury also determined 

that Deborah Pochron should receive nothing for loss of consortium and loss of 

household services. 

The trial court also submitted a separate question addressing the affirmative 

defense of “primary assumption of risk” under New York law. Question 7 stated: 
3

Voluntary participants in sports or recreational activities consent to 

those commonly appreciated risks which are inherent in and arise out 

of the nature of the activity generally and flow from such 

participation. 

Awareness of the risk is to be assessed against the background of the 

skill and experience of the particular participant. It is not necessary 

for the participant to have foreseen the exact manner in which his 

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

the mechanism from which injury results. 

Participants do not consent to conduct that is reckless, intentional or 

that creates a risk over and above the usual dangers inherent in the 

activity. 

Do you find that Paul Pochron assumed the risk of the occurrence in 

question and consented to that risk by engaging in snowmobiling on 

February 2, 2007? 

The jury answered “yes” to Question 7. Oleksy filed a motion asking the trial 

court to sign a take-nothing final judgment based on the jury’s “yes” answer to 

Question 7. The trial court did so, and the Pochrons now appeal from the trial 

court’s take-nothing judgment. 

ANALYSIS

The Pochrons raise ten issues on appeal. Because the tenth issue addressing 

the “primary assumption of risk” doctrine is dispositive, we address it first.1 

I. “Primary Assumption of Risk” Doctrine

In their tenth issue on appeal, the Pochrons attack Question 7 on three 

grounds: (1) the trial court erred in allowing the “primary assumption of risk”

question to be included in the jury charge; (2) the trial court erred in failing to 

disregard the jury’s “yes” answer to Question 7 because this doctrine “does not and 

should not bar recovery where the Defendant engaged in conduct that was 

 

1

Issues one through nine focus on the sufficiency of the evidence to support the answers 

to a jury question asking whether Oleksy was acting in the course and scope of his employment, 

and to jury questions addressing various categories of damages. 
4

determined by the jury to be negligent;” and (3) the evidence is legally insufficient 

to support the jury’s “yes” answer to Question 7.

2

 

A. Charge Error

The Pochrons assert that “the trial court erred in allowing the ‘primary 

assumption of risk’ question to be included in the jury charge.” We review a trial 

court’s formulation of the jury charge under an abuse of discretion standard. See 

Thota v. Young, 366 S.W.3d 678, 693 (Tex. 2012). Because this contention assails

the trial court’s formulation of the jury charge, we look to objections made at the 

charge conference. 

The Pochrons preserved two objections to Question 7 during the charge 

conference: (1) “primary assumption of risk” is not applicable as a matter of law 

because “the snowmobiling that the Plaintiff and Defendant were engaged [in] is 

not an activity for which assumption of the risk applies;” and (2) Oleksy’s 

“statutory duty to follow the applicable laws relating to the safe operation of his 

snowmobile cannot be limited by the primary assumption of risk doctrine.” The 

trial court overruled these charge objections.

Addressing the Pochrons’ first charge objection requires some background 

discussion regarding New York law. When the New York legislature enacted the 

Civil Practice Law and Rules in 1975, it abolished contributory negligence and 

 

2

In response to the Pochrons’ tenth issue on appeal, Oleksy asserts that the Pochrons 

waived any argument that the “primary assumption of risk” doctrine does not apply because they 

did not oppose Oleksy’s motion for choice-of-law determination and judicial notice of New York 

law. See Tex. R. Evid. 202. We reject this waiver contention because the Pochrons do not 

contest the application of New York law. Instead, the Pochrons contend that the “primary 

assumption of risk” doctrine recognized under New York law does not foreclose recovery under 

the specific facts of this case.
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assumption of risk as absolute defenses in favor of comparative risk. See N.Y. 

C.P.L.R. 1411 (McKinney 1975). The relevant provision of the Civil Practice Law 

and Rules states: 

In any action to recover damages for personal injury, injury to 

property, or wrongful death, the culpable conduct attributable to the 

claimant or to the decedent, including contributory negligence or 

assumption of risk, shall not bar recovery, but the amount of damages 

otherwise recoverable shall be diminished in the proportion which the 

culpable conduct attributable to the claimant or decedent bears to the 

culpable conduct which caused the damages.

Id. 

Despite this provision, New York courts “have held that a limited vestige of 

the assumption of the risk doctrine — referred to as ‘primary’ assumption of the 

risk — survived the enactment of CPLR 1411 as a defense to tort recovery in cases 

involving certain types of athletic or recreational activities.” See Custodi v. Town 

of Amherst, 980 N.E.2d 933, 935 (N.Y. 2012). Instead of acting as a complete 

defense, “primary assumption of risk” potentially limits the scope of any otherwise 

applicable duty to exercise reasonable care. See Trupia ex rel. Trupia v. Lake 

George Cent. Sch. Dist., 927 N.E.2d 547, 548-49 (N.Y. 2010). Under this 

approach, a plaintiff who accepts a known risk “negates any duty on the part of the 

defendant to safeguard him or her from the risk.” Id. at 548. The “primary 

assumption of risk” doctrine applies to recreational activities as well as sporting 

activities because such activities have great social value. Custodi, 980 N.E.2d at 

935. 

“Primary assumption of risk” applies when a voluntary participant “is aware 

of the risks which are inherent in and arise out of the nature of the sport generally 

and flow from such participation.” Pantalone v. Talcott, 861 N.Y.S.2d 166, 167 

(N.Y. App. Div. 2008). The duty owed in connection with such activities is “a 
6

duty to exercise care to make the conditions as safe as they appear to be.” Custodi, 

980 N.E.2d at 935. Participants in athletic and recreational activities do not 

consent to conduct that is reckless, intentional, or so negligent as to create an 

unreasonably increased risk. See id. 

The Pochrons contend that “primary assumption of risk” does not apply in 

this case because snowmobiling is not the type of activity covered by the doctrine.

They support this assertion by citing Trupia ex rel. Trupia, 927 N.E.2d at 547. 

In Trupia, an unsupervised eleven-year old boy was injured while sliding 

down a bannister at school. Id. at 548. The New York Court of Appeals declined 

to apply the “primary assumption of risk” doctrine; it stated that the doctrine “must 

be closely circumscribed if it is not seriously to undermine and displace the 

principles of comparative causation.” Id. at 547. The court concluded that the 

injury-causing activity at issue in that case — horseplay — was not significant 

enough to insulate the school district from a breach of duty claim. Id. 

Unlike Trupia, this case does not involve horseplay or children. Instead, the 

plaintiff in this case was an adult engaged in snowmobiling. Unlike horseplay, the 

“primary assumption of risk” doctrine has been applied to snowmobiling. See 

Haider v. Zadrozny, 876 N.Y.S.2d 215, 216 (N.Y. App. Div. 2009) (“[T]he 

doctrine of primary assumption of risk completely bars recovery to one who is 

injured during his or her voluntary participation in a sport or recreational activity 

such as riding upon or being towed behind a snowmobile.”). We conclude that the 

doctrine applies in this case, and that a collision with another snowmobile driver is 

a risk inherent in snowmobiling. Cf. Zielinski v. Farace, 737 N.Y.S.2d 199, 200 

(N.Y. App. Div. 2002) (risk of injury caused by another skier is an inherent risk of 

downhill skiing). 
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Turning to the second charge objection, the Pochrons assert that Oleksy’s 

“statutory duty to follow the applicable laws relating to the safe operation of his 

snowmobile cannot be limited by the ‘primary’ assumption of the risk doctrine.”

See N.Y. PARKS REC. & HIST. PRESERV. § 25.03(2) (McKinney 2006) (It is 

unlawful for any person to drive a snowmobile “in a careless, reckless or negligent 

manner so as to unreasonably endanger the person or property of another or to 

cause injury or damage thereto.”) In other words, the Pochrons contend that if a 

defendant violates the New York statute governing the operation of snowmobiles, 

then the “primary assumption of risk” doctrine does not apply. 

The Pochrons do not offer and we have not found any case law to support 

this contention. To the contrary, New York case law indicates that application of 

the “primary assumption of risk” doctrine is not foreclosed if a defendant violates a 

New York law concerning snowmobiling. See Pantalone, 861 N.Y.S.2d at 167 

(holding that a fact issue existed, requiring a jury to determine the application of 

the doctrine of assumption of risk, when a defendant snowmobile driver violated 

section 25.03 by speeding). 

For these reasons, we overrule the Pochrons’ tenth issue insofar as it is based 

on asserted charge error. 

B. Materiality of Question 7

The Pochrons also argue that the trial court erred in failing to disregard the 

jury’s “yes” answer to Question 7 because the “primary assumption of risk”

doctrine “does not and should not bar recovery where the Defendant engaged in 

conduct that was determined by the jury to be negligent.” We construe this as an 

argument that the jury’s “yes” answer to Question 1 as to Oleksy’s negligence 

made the jury’s “yes” answer to Question 7 immaterial. A jury question is 
8

immaterial when it should not have been submitted, or when it was properly 

submitted but has been rendered immaterial by other findings. Spencer v. Eagle 

Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994); Soon Phat, L.P. v. 

Alvarado, 396 S.W.3d 78, 90 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A 

jury question also is considered immaterial when its answer cannot alter the effect 

of the verdict. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). 

The Pochrons raised this contention in their motion for judgment notwithstanding 

the verdict, which the trial court denied. 

If ordinary negligence forecloses the applicability of “primary assumption of 

risk” under New York law, then it is hard to envision a scenario in which “primary 

assumption of risk” would continue to be a viable doctrine. See Martin v. Fiutko, 

801 N.Y.S.2d 236, 237 (N.Y. Sup. Ct. 2005), aff’d as modified, 811 N.Y.S.2d 250 

(N.Y. App. Div. 2006) (“However, if ordinary negligence is included in the 

standard to overcome plaintiff’s primary assumption of risk, the court questions 

when, if ever, would primary assumption of risk be a complete bar to plaintiff’s 

claim?”). New York courts have concluded that ordinary negligence does not

preclude the application of the “primary assumption of risk” doctrine. See Turcotte 

v. Fell, 68 N.Y.2d 432, 443, 502 N.E.2d 964, 971 (N.Y. 1986) (Despite 

defendant’s violation of a New York law prohibiting foul riding, plaintiff jockey 

assumed the risk of being bumped into by a horse during a race or exhibition.); 

Anand v. Kapoor, 877 N.Y.S.2d 425, 429 (N.Y. App. Div. 2009) aff’d, 942 N.E.2d 

295 (N.Y. 2010). (“[E]ven assuming that the defendant was negligent in failing to 

ascertain precisely where the other members of his party were before hitting the 

ball, or that they were close enough to the intended line of flight of his ball to 

require him to call out a warning, such carelessness does not rise to the level of 

creating a dangerous condition over and above the usual dangers inherent in 
9

participating in the sport of golf.”). Instead, a plaintiff must demonstrate that the 

defendant’s conduct was “reckless, intentional or so negligent as to create an 

unreasonably increased risk.” Pantalone, 861 N.Y.S.2d at 167; see also Custodi,

980 N.E.2d at 935 (“[P]articipants are not deemed to have assumed risks resulting 

from the reckless or intentional conduct of others, or risks that are concealed or 

unreasonably enhanced.”); but see Duncan v. Kelly, 671 N.Y.S.2d 841, 842 (N.Y. 

App. Div. 1998) (“[A] recovery by plaintiff may be predicated upon a showing of 

ordinary negligence on defendant’s part.”).

The Pochrons note that the jury charge defined negligence as follows as to 

Oleksy:

“[F]ailure to use ordinary care, that is, failing to do that which a 

person of ordinary prudence would have done under the same or 

similar circumstances or doing that which a person of ordinary 

prudence would not have done under the same or similar 

circumstances;”

“[O]perating a snowmobile at a rate of speed greater than reasonable 

or proper under the surrounding circumstances provided;” and

“[O]perating a snowmobile in a careless, reckless, or negligent 

manner, so as [to] unreasonably endanger the person or property of 

another or to cause injury or damage thereto.”

The jury charge also defined ordinary care as the “degree of care that would be 

used by a person of ordinary prudence under the same or similar circumstances.” 

In light of these definitions, they contend the jury found that Oleksy’s conduct was 

reckless when the jury answered “yes” to Question 1; therefore, they contend that 

the “primary assumption of risk” doctrine is not applicable to foreclose a claim 
10

based on Oleksy’s reckless conduct. See generally Sw. Key Program, Inc. v. GilPerez, 81 S.W.3d 269, 271-72 (Tex. 2002) (surveying liability standards nationally 

for sports-related injuries). 

Even if it is assumed for argument’s sake that “reckless” conduct would 

foreclose application of “primary assumption of risk” under New York law, 

conduct that is negligent because it amounts to a failure to exercise ordinary care 

does not. See Anand, 877 N.Y.S.2d at 429; Martin, 801 N.Y.S.2d at 237. We 

reject the Pochrons’ contention because the court submitted multiple alternative 

theories of negligence without objection in a broad form jury charge. Only one 

referenced “reckless” conduct, and the jury was not required to accept that 

definition in order to answer “yes” to Question 1. Thus, although the jury charge 

contained a definition of negligence that referenced “reckless” conduct, the jury 

could have relied on one of the alternative theories of negligence and found that 

Oleksy’s conduct amounted to a failure to use ordinary care.

We conclude that the jury’s “yes” answer to Question 1 as to Oleksy did not 

render the jury’s “yes” answer to Question 7 immaterial or make the “primary 

assumption of risk” doctrine inapplicable. We reject the Pochrons’ tenth issue 

insofar as it is based on the trial court’s asserted error in failing to disregard the 

jury’s “yes” answer to Question 7 in light of the “yes” answer to Question 1. 

C. Sufficiency of the Evidence

The Pochrons assert in their reply brief that the evidence is legally 

insufficient to support the jury’s “yes” answer to Question 7. This complaint is not 

preserved for our review because the Pochrons did not raise it in their original 

appellate brief. See Tex. R. App. P. 38.3; Priddy v. Rawson, 282 S.W.3d 588, 597 

(Tex. App.—Houston [14th Dist.] 2009, pet. denied) (An appellant is not allowed 
11

to include an issue in a reply brief that was not raised in the appellant’s original 

brief.). 

Accordingly, we overrule the Pochrons’ tenth issue. 

CONCLUSION

Because the Pochrons’ tenth issue is dispositive, we need not address their 

remaining issues. We affirm the trial court’s judgment. 

/s/ William J. Boyce

Justice

Panel consists of Justices Boyce, Christopher, and Brown.