Assumption of Risk

Game, Set, Match: Plaintiff Tripping On Tennis Court Has No Claim Under Primary Assumption of Risk Doctrine (NY)

In Schwartz v. Ramapo, 2021 NY Slip Op 04773 (2d Dept. 2021), a plaintiff was playing tennis when she suffered injuries after tripping on a raised sprinkler head in between two tennis courts owned and operated by the Town of Ramapo.  The Rockland County Supreme Court Judge dismissed the Ramapo defendants’ under the doctrine of primary assumption of risk. “Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation.  Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care (Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d [2d Dept. 2020]); ‘the defendant’s duty is to exercise care to make the conditions as safe as they appear to be.  If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty’ (Asprou, supra). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (Asprou, supra). “Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played” (see Philius v City of New York, 161 A.D.3d 787 [2d Dept. 2018] ), including less than optimal conditions (Asprou, supra).

The Second Dept. held the defendants’ satisfied their prima facie burden for summary judgment by showing the raised sprinkler head was open and obvious and plaintiff testified she knew sprinkler heads were present in between tennis courts. Plaintiff’s argument that she was not specifically aware of the sprinkler system causing her fall was unavailing. The court determined for the application of assumption of risk, the plaintiff need only know the potential exists for the mechanism of her fall i.e. she knew there were certain sprinkler heads present on the tennis court and she knew the tennis courts were cleaned with water from the sprinklers. Plaintiff also failed to offer any conclusive expert evidence that the sprinkler heads should have been flush with the court so as to avoid causing a tripping hazard.

The Schwartz case sets an excellent example of the doctrine of primary assumption of risk. It highlights that if a certain condition exists in a recreational area, although it may be hazardous, it may also fall under the assumption doctrine so long as the condition is open and obvious and the public participants would have been made aware of the condition as a part of the recreational activity.  Prudent property owners will warn public pedestrians about the potentially hazardous conditions on their recreational areas to avoid liability for subsequent injuries.

Thanks to Raymond Gonzalez for his assistance with this post.  Should you have any questions, please feel free to contact Tom Bracken.

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Did the Skater Assume the Risk? (NY)

In Goulet v Pier 2 Roller Ring at Brooklyn Bridge Park, the Appellate Division, Second Department addressed whether the defendant was entitled to summary judgment dismissing the plaintiff’s complaint.

Plaintiff alleged personal injuries when roller skating at a rink operated by defendant. At the time of the alleged fall, plaintiff was an experienced skater, and skating backwards when she tripped over an uneven portion of the rink.

The general manager for the defendant testified that “where the plaintiff fell periodically “buckl[ed]” due to an expansion joint”. However, when this condition was observed, the staff placed an orange cone there to warn the skaters – and the general manager observed the cone at this location prior to plaintiff’s alleged accident. In addition, the plaintiff even acknowledged that she had seen the cone and “probably . . . gone around” it on two occasions prior to this accident.

The court stated, “Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity “consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation”. (citations omitted).  The court went on to state, “When a plaintiff assumes the risk of participating in a sporting event, the defendant is relieved of legal duty to the plaintiff; and being under no duty, [the defendant] cannot be charged with negligence'” (Kannavos v Yung-Sam Ski, Ltd., 187 AD3d at 730, quoting Cotty v Town of Southampton, 64 AD3d 251, 254).

The court held that defendants were entitled to summary judgment based on the doctrine of primary assumption of risk, and that “plaintiff chose to skate backwards in close proximity to the prominent orange cone at the time of the accident”.

This decision serves as a reminder that if plaintiff is aware of a dangerous condition, that they may have assumed the risk, and in turn, not owed a duty of care.

Thanks to Corey Morgenstern for his contribution to this post.  Please email Georgia Coats with any questions.

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Lack of Boundary or Lack of Claim (NY)

In New York, a plaintiff commenced an action against a School District for alleged personal injuries sustained by her child while he was engaged in a drill during school basketball practice. In Secky v. New Paltz Central School District, the New York Supreme Court denied defendant’s motion for summary judgment dismissing the complaint.

The plaintiff’s child in Secky was participating in a basketball drill that did not use the boundary lines of the court. Accordingly, players continued to play even when the ball when out of bounds. Following a missed shot, the child went to retrieve a ball that had left the court. As the child approached the ball, around 2-4 feet from the retracted bleachers, he eased up and reached for the ball. While this was happening, a teammate  bumped the child from behind face first into the bleachers.

In New York, a person who voluntarily participates in a sport or recreational activity assumes the risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. However, the Plaintiff argued that the inherent risks of participating in basketball were increased by the elimination of the boundary line during the drill.

On appeal, the Appellate Court concluded that the risks inherit in playing basketball were not increased by the removal of boundaries for the drill. The plaintiff provided an expert witness who claimed that the drill could have been safer by utilizing the boundary lines of the basketball court. The Appellate Court determined this assessment was insufficient to raise an issue of fact, especially because plaintiff’s expert had not proved that defendant violated a specific industry standard. As a result, the Appellate Court reversed the lower courts decision to deny the motion dismiss.

This matter confirms that a defendant should always ensure that they are following specific industry standards. Because the plaintiff in this case was unable to show that the school district had not violated industry standard, her case was dismissed.

Thanks to Cory Maiorana for his contribution to this post. Please contact Heather Aquino with any questions.

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Slippery When Wet: Defendant Fails to Gain Summary Judgment Because Water Did Not Come From Pool but Leaky Pipes (NY)

In O’Brien v. Asphalt Green, Inc., the plaintiff allegedly was injured when she slipped and fell on a wet condition on the pool deck at an indoor swimming facility, which was operated by the defendant, Asphalt Green, Inc. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff assumed the risk, and that it cannot be held liable for the plaintiff’s accident since the wet condition was necessarily incidental to the use of an indoor pool. The Supreme Court denied the defendant’s motion, and the defendant appeals.

The Appellate Division, Second Department, upheld the lower Court’s decision holding defendant cannot obtain summary judgment by relying on the cases in which courts have dismissed personal injury claims arising out of slipping on water around pools based on the reasoning that such water was necessarily incidental to the use of the area. Here, the slippery condition that allegedly caused the plaintiff’s fall resulted from brown water that dripped from what the plaintiff described as an overhead pipe, rather than from water splashed from the pool. The defendant failed to establish that water accumulation on an indoor pool deck from condensation that had formed and dripped from overhead pipes or ductwork was necessarily incidental to the use of an indoor swimming. Further, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law based upon the doctrine of primary assumption of risk. Under the doctrine, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport. The hazardous condition of an indoor pool deck wet from condensation that had formed and dripped was not open and obvious and created a risk beyond that inherent in the sport of swimming in an indoor swimming facility nor does the doctrine exculpate a landowner from liability for ordinary negligence in maintaining a premises.

Thanks to Paul Vitale for his contribution to this post.  Please email Georgia Coats with any questions.Read More