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Oh Those Summer Nights (NY)

December 22, 2017

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On these cold winter days that melt into darkness in the afternoon, we can only dream of playing a game of catch with a friend in an open grassy area in a park on a summer night. Yet, in that idyllic thought lurks the risks that come with sport.
In <a href="http://blog.wcmlaw.com/wp-content/uploads/2017/12/Genefar-v-Great-Neck-Park-Dist.-2017-NY-Slip-Op-08812.pdf">Genefar v Great Neck Park District</a>,the plaintiff complained he was injured on such a night.  While playing a game of catch, the plaintiff jumped up and backward for the ball and struck his arm on a corner of a metal sign attached to a light pole that was approximately six feet and seven inches above ground level. Plaintiff subsequently commenced suit for personal injuries against defendant property owner, who moved for summary judgment.
The lower court dismissed the complaint based on the doctrine of primary assumption of risk. While the Appellate Division affirmed the court’s decision, it relied on different grounds. The Court ruled that a landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property. However, an owner has no duty to protect against an open and obvious condition provided that the condition is not inherently dangerous.
The defendant established that the sign on which plaintiff struck his arm was open and obvious, readily observable by plaintiff, known to the plaintiff prior to the accident and, as a matter of law, was not inherently dangerous. Based on those grounds, the appellate court did not address the application of the doctrine of primary assumption of risk.
Thanks to Lauren Tarangelo for her contribution.
For more information, contact Denise Fontana Ricci at <a href="mailto:dricci@wcmlaw.com">dricci@wcmlaw.com</a>.
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