Sports Injuries

Plaintiff Hurt In A Pickup Game Found To Have Assumed The Risk Of Injury (NY)

In Lungen v. Harbors Haverstraw Homeowners Assn., Inc., the New York Appellate Division, Second Department, addressed whether a plaintiff injured while playing in a basketball “pickup” game assumed the risk of his injuries. Plaintiff alleged to have fallen when he slipped on condensation on the floor of a gym. The defendants moved for summary judgment on the grounds that plaintiff had assumed the risk since humidity that day created slippery conditions.

The court stated that assumption of risk is not an absolute defense but a measure of the defendant’s duty of care. It observed that “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.” However, “[i]f the risks are known by or perfectly obvious to the player, he or she has consented to them, and the property owner has discharged its duty of care by making the conditions as safe as they appear to be.”

The court affirmed the trial court’s award of summary judgment in favor of defendants, finding that plaintiff assumed the gym floor would be slippery due to condensation in light of the humid conditions at that time. Plaintiff had testified that he had played basketball in that gym more than 50 times, and knew the air was humid.

This decision serves as a reminder that playing sports involves certain risks, and that New York courts will apply the assumption of risk defense in cases involving injuries caused by known and obvious risks.

Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions.

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Injury During High School Soccer Tournament Covered Under Charitable Immunity Act

The Appellate Division recently analyzed whether a sporting event was “promoting” a charitable or educational objective of Kean University to afford immunity for Kean under the Charitable Immunity Act. Fisher v. Kean University, 2022 WL 906582 (App. Div. 2022). In this case, a plaintiff who was competing in a high school soccer tournament hosted by Kean was injured after tripping and falling on an uneven sidewalk causing her to require cervical surgery.

To qualify for charitable immunity, an entity must (1) be formed for nonprofit purposes; (2) be organized exclusively for religious, charitable or educational purposes, and (3) must be promoting such objectives and purposes at the time of the injury to plaintiff who was then a beneficiary of the charitable work. At issue in this case was whether the soccer tournament furthered the objectives and purposes of Kean University.

Kean argued that it was promoting its charitable and educational objectives by hosting the NJSIAA Girls Soccer Championships. Kean cited to its mission statement, which was to “dedicate itself to the intellectual, cultural, and personal growth of all its members.” The mission statement further stated “Kean is an interactive university and…. serves as a major resource for regional advancement. Kean collaborates with business, labor, government and the arts, as well as educational and community organizations and provides the region with cultural events and opportunities for continuous learning.”

The Appellate Division noted that NJ precedent has afforded substantial latitude to nonprofit institutions in determining the appropriate avenues for achieving their objectives. An “educational objective” is broadly interpreted and not limited to purely scholastic activities. Because Kean’s mission statement specified its intention to prepare students to serve as active and contributing members of their communities and to collaborate with community organizations, no reasonable factfinder could conclude that Kean was not promoting its stated objectives by hosting a high school soccer championship game at its stadium. Therefore, Kean was granted immunity and the plaintiff’s claims against Kean were dismissed. This case further reaffirms the broad scope of immunity granted under New Jersey’s Charitable Immunity Act and will prove useful in defending non-profit institutions in the future.

Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions.

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Heads up! NJ Appellate Division Holds That An Injured Plaintiff Need Not Establish Reckless Conduct On The Part Of Her Field Hockey Coach (NJ)

A recent decision from the New Jersey Appellate Division held that a student-athlete does not have to prove reckless conduct on the part of her coach to sue the coach and the board of education. See Dennehy v. East Windsor Regional Board of Education.

In this instant case, the girls’ field hockey team were performing corner drills while the other members of the team were observing the drills from a “safe area” behind a ball stopper.  At that time, the boys’ soccer team was practicing on the adjacent field and plaintiff observed several soccer balls vault the ball stopper.  After the team had finished the corner drills, plaintiff asked her coach if she could take a shot on goal.  The coach agreed because plaintiff, who was the goalie, rarely had an opportunity to take a shot on goal.  Plaintiff left the area directly behind the ball stopper.  Plaintiff was then struck in the back of the neck by a soccer ball.

The trial court, of course, granted summary judgment, holding that case law required plaintiff to show that the coach engaged in reckless conduct.  The appellate division reversed, reasoning that recklessness is the standard when the alleged tortfeasor is a co-participant in the sport.  The Court distinguished the instant matter on that basis as here the coach was not a participant.

This case is a good illustration of how an innocuous “instruction” by a coach led to tort liability on behalf of the school district.  Nonetheless, this illustrates that Courts will occasionally bend over backwards to allow suits with minors to survive.

Thanks to Michael Noblett for his contribution to this post.  If you have any questions, please email Matthew CareRead More

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

It’s Just Part of the Game: Plaintiff Assumes Risk with Collision at Third (NY)

In Infant v. Loisaida Inc, plaintiff, a thirteen-year-old, was injured when, as he was fielding at third base in a baseball game, a baserunner slid into the base and collided with his left shin. Infant plaintiff brought suit alleging negligence of the league for his injuries. Defendants argued that the plaintiff assumed the risk, as he had played baseball for seven years. The lower court dismissed the case against the defendants and plaintiff appealed.

The Appellate Division, First Department affirmed the lower Court’s decision under the doctrine of assumption of risk, as knew the inherent risks of the game. He was injured in a common play in baseball.

The Court rejected plaintiffs’ argument that the baserunner’s metal cleats created an enhanced or concealed risk that was not assumed. The little league rules that defendant was required to follow permitted the wearing of such cleats, and both the 13–year–old infant plaintiff and his father testified that they observed the baserunner wearing metal cleats. Plaintiffs have not shown that defendant failed to provide safety equipment that would have prevented the inherent risks.

Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision

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

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No Joy In Mudville: Plaintiff’s Case Strikes Out (NY)

In Chiaramonte v. Town of Smithtown, plaintiff was playing in a charity softball tournament sponsored by the defendants when she slipped on a muddy surface of one of the fields running from second to third base, allegedly injuring herself. The plaintiff subsequently commenced the instant action to recover damages for personal injuries against the defendants, alleging that they were negligent in the maintenance of the subject field. The defendants moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff assumed the risk of her injuries. The Supreme Court granted the motion, and the plaintiff appeals.

The Appellate Division, Second Department, upheld the lower Court ruling under the doctrine of primary assumption of risk. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation. Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.

 Here, the plaintiff admitted to observing that the field on which she was injured was “pretty muddy” prior to her accident, and testified at her deposition that she knew that it had rained the day before the accident. The plaintiff, a seasoned softball player and coach, further testified at her deposition that she had played softball previously in the rain and was fully aware that she could be injured at any time playing softball.

 The evidence submitted in support of the motion demonstrated that the plaintiff knew of the muddy conditions on the subject field and voluntarily chose to play anyway, and that she was readily aware of the risks inherent in the game of softball. Thus, she assumed the risk of slipping on mud on this field at the time of the subject accident.

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

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Take Me Out To The Muddy Ballgame (NY)

This week, we bring you a slip and fall involving a softball game in Smithtown, NY. In Chiaramonte v. Town of Smithtown, 2021 NY Slip Op 01244 (2d Dept. 2021), defendants were granted summary judgment dismissal of all claims for a plaintiff who slipped and fell on muddy field conditions while she was playing a charity softball game organized by defendants. The defendants won dismissal by arguing that the plaintiff assumed the risks of injury when she played that day.

Under the legal doctrine of assumption of risk, “if the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be.” (Brown v City of New York, 69 A.D.3d 893, 893; see Morgan v State of New York, 90 N.Y.2d 471, 484). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see E.B. v Camp Achim, 156 A.D.3d 865, 866).

The plaintiff testified that she knew it rained the day prior, she saw the field was muddy before playing the game, and she was a softball player and coach who knew the risks of injury involved. The Second Department concluded that plaintiff assumed the risks of injury under the circumstances, and defendants could not have done anything to make the field safer under the conditions. For these reasons, the court upheld the trial court’s dismissal.

This case highlights the often-overlooked area of assumption of risk for certain activities. Defendants should ensure that they obtain the necessary discovery to support the argument of assumption of risk in cases involving recreational activities.

Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions.

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Baseball Player Used Eye As Catcher’s Mitt, Assumed The Risk (NY)

In Grady v Chenango Valley Central School District, Plaintiff, then a high school senior and member of the Chenango Valley High School boys’ varsity baseball team, sustained permanent injuries to his right eye after being struck in the head by a baseball during a combined varsity and junior varsity outdoor baseball practice. Plaintiff commenced this action alleging that his injuries were caused by defendants’ negligence in, among other things, conducting multiple infield drills with multiple balls simultaneously in play without proper safety precautions and equipment. Defendants moved for summary judgment dismissing the complaint. Supreme Court granted the motion and dismissed the complaint, finding that plaintiff assumed the risk of injury. Plaintiff appeals.

The Appellate Division, Third Department upheld the lower court’s decision, holding that  risks which are commonly encountered or inherent in a sport, such as being struck by a ball or bat in baseball, are risks for which various participants are legally deemed to have accepted personal responsibility.”

Plaintiff testified that he has played baseball since he was a young child and had played on his school’s modified, junior varsity and varsity teams in previous years. Plaintiff voluntarily participated in baseball practices, including the multiple ball infield drill and the testimony makes clear that plaintiff appreciated the risk of getting hit by an errant throw.

Although plaintiff asserts that the presence of a screen between certain players may have provided a false sense of security that they would be protected, thereby creating a dangerous condition beyond the normal dangers inherent in the sport, this argument is belied by his testimony unequivocally establishing that he did not rely upon the screen for safety but, rather, thought that the drill was unsafe even in the presence of the screen.

The Court’s majority ruled the evidence showed that plaintiff was an experienced baseball player who “knew of the risks, appreciated their nature and voluntarily assumed them,” defendants demonstrated their prima facie entitlement to summary judgment under the primary assumption of risk doctrine.

In dissent, Justice Pritzker believed there was a question of fact as to whether the plaintiff could have assumed the risk when the safety screen, he deemed, was inadequate. The purpose of the screen was to make the drill reasonably safe; however, instead of choosing a screen because it was a particular size or shape, the screen they utilized was chosen out of convenience, as it was what was the largest one available. Notably, plaintiff’s expert opined that the screen was too small and was not positioned in a manner so as to protect plaintiff at first base. Accordingly, it is my opinion that this case is more properly analyzed using the standard employed in cases involving inadequate safety equipment.

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

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Watch Your Feet: Plaintiff Assumed Risk When Kicked In Head By Fellow Dancer (NY)

In Spruck v. Pollack and Academy of Dance Arts, plaintiff was allegedly injured while participating in a dance program run by defendants. During a rehearsal for a dance recital, plaintiff was participating in a choreographed dance when another dancer was spinning with her leg in the air and the other dancer’s foot came into contact with plaintiff’s head. Plaintiff continued with the rehearsal after the incident. Defendants [Dance instructor and school] moved for summary judgment dismissing the complaint on the grounds that the doctrine of assumption of the risk is applicable. Defendants argued that Plaintiff assumed the risk and that getting struck by other dancers during a choreographed dance is part of dancing. The lower Court granted Defendants’ motions and plaintiff appealed.

The Appellate Division, First Department upheld the lower Court decision that Defendants’ demonstrated that plaintiff voluntarily engaged in the activity of dancing and as an experienced dancer knew the risks inherent in the activity. Plaintiff had been enrolled in defendants’ dance academy for three years and participated in five to six dance competitions each year. The video of the accident submitted by Defendants further demonstrated Plaintiffs experience as a dancer. Moreover, the video of the accident established that the dance moves at the time the accident occurred did not create a dangerous condition over and above the usual dangers inherent in dancing. Plaintiff’s argument, that no one specifically informed her that getting kicked in the head was one of the risks, was found to be an unavailing argument, as it is not necessary that she foresee the exact manner for which the injury might occur, so long as there is a general awareness for potential of injury due to engagement in the activity.

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

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Sheaf Happens: Spectator Loses Due To Assumption Of Risk At Sheaf Tossing Competition (NY)

The sheaf toss is a traditional Scottish agricultural sport event originally contested at country fairs. A pitchfork is used to hurl a burlap bag stuffed with straw over a horizontal bar above the competitor’s head. Three chances are given to each competitor to cleanly go over the bar, without touching it. After all challengers have made their attempts, the bar is raised and all successful competitors move on to the new height. This continues until all but one athlete is eliminated.

In McKay v. Rockland Gaelic Athletic Association et al., the plaintiff allegedly was injured on the grounds of the defendant Rockland Gaelic Athletic Association, Inc. by an errant sheaf tossed by the defendant Noel C. Cronin during a sheaf-tossing competition.

The plaintiff commenced this action against the defendants to recover damages for personal injuries. Defendants moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the defendants’ separate motions, and the plaintiffs appeal.

The Second Department affirmed the lower Court’s ruling under the theory of assumption of risk.  “The doctrine of primary assumption of the risk applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it.” Since plaintiff was a willing spectator, she should have known and been aware of her surroundings. the risk of being hit by a thrown sheaf is obvious and inherent and therefore, not actionable and summary judgment was appropriate in this matter.

Thanks to Paul Vitale for his contribution to this post.  Any questions, please contact Georgia Coats.Read More