Organizers of a jell-o wrestling event at a college dorm assumed the risk of injury, a New York judge has ruled in dismissing the case of a former student who fell into a pool of jell-o after being pushed by another resident.

Avram Wisnia, who attended New York University, was secretary of his dorm's student council. As part of its spring activities, the council organized a “Beach Bash Event” and, sandy beaches generally not being available in Manhattan, set up a kiddie pool on the concrete surface of the dorm courtyard for jell-o wrestling.

Apparently unable to wait for the official jell-o wrestling match to start, two of Wisnia's buddies identified only as Alex and Carmen pushed him into the pool. He emerged unscathed but, after removing his cell phone and wallet from his pocket, proceeded to tussle with Carmen in close proximity to the pool.

The second round of horseplay ended with another student pushing both Wisnia and Carmen into the pool and Wisnia injuring his hip in the fall.

Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport [or recreational activity] generally and flow from such participation.”

In suing NYU for negligence, Wisnia argued that the rule did not apply to his case because jell-o wrestling is not a sporting activity and he did not consent to the poolside roughhousing.

But Manhattan Supreme Court Justice Carol Robinson Edmead granted NYU's motion for summary judgment, saying it would be “difficult to imagine a more compelling set of facts for the application of the doctrine of primary assumption of risk.”

“Plaintiff voluntarily entered the Premises to take part in the activities that were planned on that day,” she noted in her decision. Those activities included a jell-o wrestling match, she continued, and

Although plaintiff may not have foreseen the exact manner in which his injury occurred, he was aware of the potential for injury when he decided to grapple with another student in front of a kiddie pool on a concrete surface. Under these facts, plaintiff fully comprehended the risk of the activity in which he was engaged and assumed the risk of the injuries which he sustained.

By Matthew Heller
1/31/08