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Plaintiff Cries Foul Over Wet Basketball Court (NY)

July 16, 2020

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<p style="text-align: justify;"><span style="font-size: 13.5pt; font-family: 'Times New Roman',serif; color: black;">In <em><a href="">Asprou v. Hellenic Orthodox Community of Astoria</a>, </em>the plaintiff was injured when he slipped and fell on water leaking from the roof of the defendants' gymnasium while playing basketball at the defendants' school. The school moved for summary judgment seeking to dismiss the complaint by arguing that the school did not create the dangerous condition or have actual or constructive notice of the dangerous condition.  The school also argued that the plaintiff's action was barred by the doctrine of assumption of risk. The lower denied the defendants' motion, and the defendants appeal.</span></p>
<p style="text-align: justify;"><span style="font-size: 13.5pt; font-family: 'Times New Roman',serif; color: black;"> </span><span style="font-size: 13.5pt; font-family: 'Times New Roman',serif; color: black;">The Appellate Division Second Department affirmed the lower court decision and found that the plaintiff raised a triable issue of fact as to whether the defendants created the condition by negligently maintaining or repairing the roof.  Specifically, the appellate court held that the defendants failed to submit evidence regarding specific cleaning or inspection protocols they had with regard to the area where the plaintiff's accident occurred.  The appellate division also found that the school could not argue assumption risk as "risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.”  Participants, the court held, are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport. The hazardous condition of an interior gym floor wet from a leaking roof was not open and obvious, and created a risk beyond those inherent in the sport of basketball.</span></p>
Thanks to Paul Vitale for his contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.


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