Wade Clark Mulcahy LLP

When a plaintiff voluntarily chooses to play a sport on an outdoor surface such as a basketball court that has faulty conditions, Courts hold that sometimes plaintiff assumes the risk of injury and precludes him from recovering.

For example, in <a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/Balgley-v.-City-of-New-York.pdf"><em>Balgley v. City of New York</em></a><em>,</em> 2023 NY Slip Op 03672 (2d Dep’t July 5, 2023), a plaintiff suffered personal injuries when he tripped and fell due to a hole on an outdoor basketball court located within a park in Queens, New York.

Plaintiff subsequently commenced a lawsuit against the defendant seeking to recover damages for personal injuries. After discovery, the defendants moved for summary judgment based on the doctrine of assumption of risk.

Accordingly, under the doctrine of assumption of risk when a plaintiff engages in a sport or recreational activity, they consent to “commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” (<em>Asprou v Hellenic Orthodox Community of Astoria, </em>185 AD3d 641, 642, quoting <em>Morgan v State of New York</em>, 90 NY2d 471, 484; <em>see Custodi v Town of Amherst</em>, 20 NY3d 83, 88).

Therefore, the lower court held, and the second department recently affirmed, that the defendant’s established that the plaintiff assumed the risk of injury from stepping into a hole by voluntarily choosing to play basketball on an outdoor court that had faulty conditions that were also open and obvious.

As such, the defendant’s motion for summary judgment dismissing the complaint was granted. It is important to note that not all jurisdictions have an assumption of the risk defense; for example, PA has largely abrogated an assumption of the risk defense.

Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact <a href="mcare@wcmlaw.com">Matthew Care</a>.