Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/08/Schwartz-v.-Ramapo.pdf">Schwartz v. Ramapo</a>,</em> 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 (<em>Asprou v Hellenic Orthodox Community of Astoria</em>, 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’ (<em>Asprou</em>, supra). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (<em>Asprou</em>, 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” (<em>see</em> <em>Philius v City of New York</em>, 161 A.D.3d 787 [2d Dept. 2018] ), including less than optimal conditions (<em>Asprou</em>, supra).</p>
<p style="text-align: justify;">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 <em>potential</em> exists for the mechanism of her fall <em>i.e.</em> 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 <em>should</em> have been flush with the court so as to avoid causing a tripping hazard.</p>
<p style="text-align: justify;">The <em>Schwartz</em> 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 <em>assumption doctrine</em> 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.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his assistance with this post.  Should you have any questions, please feel free to contact <a href="mailto:tbracken@wmclaw.com">Tom Bracken.</a></p>