Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2021/03/Chiaramonte-v-Town-of-Smithtown.pdf">Chiaramonte v. Town of Smithtown</a>,</em> 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 <span>assumed</span> the <span>risk</span> of her injuries. The Supreme Court granted the motion, and the plaintiff appeals.</p>
<p style="text-align: justify;">The Appellate Division, Second Department, upheld the lower Court ruling under the doctrine of primary <span>assumption</span> of <span>risk</span>. <span>Risks</span> 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 <span>assumed</span> the <span>risks</span> of reckless or intentional conduct, or concealed or unreasonably increased <span>risks</span>.</p>
<p style="text-align: justify;"><span> </span>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.</p>
<p style="text-align: justify;"><span> </span>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 <span>risks</span> inherent in the game of softball. Thus, she <span>assumed</span> the <span>risk</span> of slipping on mud on this field at the time of the subject accident.</p>
<p style="text-align: justify;">Thanks to Paul Vitale for his contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>