Introduction This memorandum is being submitted to te court in support of Defendant, Sandy Bells, motion for summary judgement against

the Plaintiff, Linda Alexander. The Defendant has argued as to the assumption of risk undertaken by the Plaintiff while engaged during athletic play and instruction. One is entitled to summary judgement when there are no issues of material fact and if one party is entitled to judgement as a matter of law. The Defendant was instructing the Plaintiff in a one on one setting, as both are high ranked an skilled tennis players. Plaintiff had informed Defendant that her game was weak in certain areas and scheduled training sessions. Plaintiff, who was by her own admission distracted during the course of play, was struck in the eye with enough force to detach her retina, and received emergency surgery thereafter. Plaintiff has filed a claim against Defendant for negligence, a fruitless claim in light of the activity and setting wherein the injury occurred. Statement of Facts Defendant, Sandy Bell, was instructing the Plaintiff, Alexander Bell, when Plaintiff was struck unexpectedly in the eye. The injury was unforeseen by both, as it occurred in the midst of normal instruction that the Plaintiff had contracted Defendant for. Defendant, a former professional and ranked tennis player, has received nearly a decade of training and teaching experience. Plaintiff was ranked as well at the time of her injury, and had contracted Defendant through Briarwood Tennis, Inc. Plaintiff stated she had a hesitation in her net play, an aspect of tennis which is inherently more dangerous than others, as users have the least amount of time to return balls hit to them. Plaintiff and Defendant were engaged in warm-ups for some time, and then Plaintiff requested that game conditions be simulated. Defendant had suggested walkthroughs, but Plaintiff insisted the speed and velocity of Defendant increase to simulate the conditions of live play. Defendant began as requested, and Plaintiff assumed position on the net. Plaintiff admitted in her deposition that she was distracted by something outside the court while returning a series of balls at the net, and the mere fractions of a second her eyes spent traveling back onto the Defendant from her distraction, she was hit in the eye and suffered a detached retina. Plaintiff therein had emergency surgery which has returned her to full vision and physical capability. Her physician stated that tennis, an dangerous game where the ball exceeds 80 miles-per-hour, participants should have eyewear t prevent injuries. Plaintiff is requirede to wear such lenses now in the course of play, as another hit to her eye could cause permanent blindness. Plaintiffs play has suffered since she began wearing the lenses, and she has since filed this suit for negiligence against Defendant and BLI.

Argument

Procedural Standard: The Defendant should receive a motion for summary judgement in regards to Plaintiffs negligence claim. In awarding summary judgment, after assessing the facts to reveal any disputes of material nature, and will then assess as a matter of law whether or not a party is entitled to a judgment (Galardi v. Seahrse Riding Club). Defendant Contention: The Defendant should be awarded summary judgment, as Plaintiffs assumption of risk nullifies her claim. Affirmative Defense of Assumption of Risk: The Defenses motion for summary judgment is appropriate in that it is based in the affirmative defense of Plaintiffs assumption of risk during the course of dangerous sport. The Knight Court provided that there are two variations of an assumption of risk claim and are enumerated as primary and secondary. In primary cases the defendant owes no duty of care to the defendant, whereas secondary cases involve liability that attaches even if the plaintiffs injury knowingly occurs under the care of the defendant (Knight v. Jewet). Specifically with regards to claims based in a sports context, the court provides that establishing the duty of care is crucial to finding defendants liability, if any. Within sports, the scope of a defendants legal duty in the sports context will depend not only on the nature of the sport itself, but also on the defendants role in or relation to the sport, and that in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue. In evincing its entitlement to summary judgment, the Defendant will demonstrate that there was a) primary assumption of risk by the Plaintiff and that no duty of care was owed because i) Plaintiff was engaged in a sport, tennis, which is inherently laiden with dangers to the eye, ii) Defendant did not elevate the risk or chance of danger and injury by it s conduct The Plaintiff was engaged in tennis, a violent fast moving sport, and was owed no duty of care by her instructor, Defendant.. The Court will first assess the nature of the sport wherein the injurt occurs,, and what types of dangers it involves on its face. (Knight). In this case, Plaintiff was playing tennis, a sport that requires a skilled user to return shots at them in excess of 80 mph, a speed that is capable of achieving injury. In Knight, the court found that two people engaged in tag football were a primary risk, and that no duty f care was involved, when plaintiff had her hand crushed by a bigger, male opponent. Conversely, the court in Tan v. Goddard found that there was a secondary assumption of risk and that there was a duty of care owed to the plaintiff by the defendant, who was an instructor. The court in Tan analyzed that horse jumping, the sport in the claim, was inherently dangerous because of the speed, force, and sheer fact that a 2000lb pound animal was involved. The plaintiff was

injured in the midst of instructor changes to the training, and the court found that a duty was inherent because of the dangerous nature of horse riding. To distinguish, the courts and Knight and Tan provide for an idea as t what the court finds as a dangerous sport or inherently involving risk of injury. The Plaintiffs claim does not take place in a sport any more dangerous than football, and certainly is not as dangerous as horse riding. The court should find that there is no duty of care owed by Defedant and that there is no liability to the Plaintiff. ii)Defendant further did not increase the chance of injury, as she only did as Plaintiff requested and acknowledged when playing on the net. Conclusion Defendant should not be liable as there was a primary assumption of risk by the Plaintiff and there was no increase in danger brought on by the Defendant conduct. Therefore summary judgement should be granted to the Defendant on the affirmative defense.