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NY Court Stuffs Suit for Fall on Open and Obvious Defect on Basketball Court

April 29, 2016

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In New York, one of the primary defenses of a landowner to a premises claim is that the alleged defect or condition was "open and obvious" so the plaintiff could have avoided it.
In <a href="http://www.nycourts.gov/reporter/3dseries/2016/2016_02763.htm"><em>Wallace v. City of New York,</em></a> an experienced basketball player was injured when he tripped over a crack or hole in an outdoor basketball court inside a New York City park. The court found that plaintiff voluntarily chose to play basketball on an outdoor court that had an open and obvious defect on its surface and as such, plaintiff voluntarily assumed the risk presented by this defect.  The court relied on photographs of the defect and the plaintiff's testimony that the defect was not blocked or obscured before he stepped on it in support of its finding that the defect was open and obvious. Although the plaintiff attempted to create an issue of fact through expert affidavits, the First Department rejected them, finding that the experts' assertions were speculative or unsupported by any evidentiary foundation or industry standard.
Thanks to Jorgelina Foglietta for her contribution to this post and please write to <a href="mailto: mbono@wcmlaw.com">Mike Bono</a> for more information.

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