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Plaintiff's Hail Mary to Overturn Decision Is Denied (NY)

February 5, 2009

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<p style="text-align: justify;">In<em> <a href="">Ninivaggi v. County of Nassau</a>,</em> the 14 year old plaintiff allegedly was injured when he and a friend were playing catch with a football on the premises of an elementary school owned by the defendant Merrick Union Free School District.  The injury occurred when the infant plaintiff stepped into a "depression" or "hole" on the grassy field, lost his balance, and fell.  The depth of the depression was variously described by the plaintiffs as being two-to-three inches, three-to-four inches, and five inches.</p>
<p style="text-align: justify;">The plaintiff had previously played on the field, and admitted that he was familiar with the condition of the field. After discovery was complete, the district moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that the plaintiffs' claims were barred by the doctrine of primary assumption of risk. The Supreme Court granted the district's motion. The plaintiffs appeal.</p>
<p style="text-align: justify;">The Appellate Division Second Department affirmed the decision pursuant to the doctrine of primary assumption of risk. The Court held the doctrine applies to inherent risks related to the construction of the playing field or surface and “encompasses risks involving less than optimal conditions”</p>
<p style="text-align: justify;">Here, the district established its prima facie entitlement to judgment as a matter of law on the basis of primary assumption of the risk. The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field. Moreover, the infant plaintiff's testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed. The Court found a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field</p>
<p style="text-align: justify;">However, there was a lengthy dissent in this matter. Here, the dissent focused on the turf itself where the threshold question with respect to any premises liability cause of action is whether the owner or possessor of the land (or building) breached the duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. Because the plaintiff stated there were depressions in the field and the defendant knew or should have known of them, their motion should have been denied. The Court stated “[E]vidence was presented from which it could be concluded that the District failed to even attempt to properly maintain the field to ensure that it was not hazardous to the children and members of the community that were welcomed to play on it. What incentive does the District have to ensure that future plaintiffs are not similarly injured from its alleged failure to provide a safe ballfield upon which the children from Merrick can play.</p>
<p style="text-align: justify;">Although the defendants won on both the state and appellate level, there is potential with this dissent that the Court of Appeals would take up this matter.</p>
<p style="text-align: justify;">Thanks to Paul Vitale for his contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.</p>

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