Wade Clark Mulcahy LLP

<p style="line-height: 18pt; background: white; margin: 0in 0in 12.75pt; text-align: justify;"><span style="font-family: 'Open Sans','serif'; color: #303030;">In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2019/07/Samuels-v.-Town-Sports-International-LLC.pdf">Samuels v. Town Sports International LLC</a></em></span><a href="https://www.wcmlaw.com/wp-content/uploads/2019/07/Samuels-v-Town-Sports-International-LLC.pdf"><span style="font-family: 'Open Sans','serif'; color: #1982d1;"></span></a><span style="font-family: 'Open Sans','serif'; color: #303030;"><em>,</em> plaintiff brought suit when he slipped and fell on the sideline of a basketball court on what he believed was dust coming from an above HVAC unit. Defendant moved for summary judgment on the theory of no notice and assumption of risk. The lower court granted summary judgment on defendant’s assumption of the risk argument. The lower court held “those who seek to recover for injuries sustained while engaged in sporting events, must overcome the assumption of risk doctrine. Thus, one who engages in a sport or recreational activity consents to those risks which are inherent in the activity.”  Plaintiff’s mere participation in a basketball game denotes acceptance of the risk of injury. Moreover, he complained of conditions of which he was aware because he was a fairly frequent player on defendant’s basketball court, and had previously noticed the dust and the slipperiness on the court. Accordingly, the lower court found that the plaintiff assumed the risk associated with playing on a basketball court in such condition. Plaintiff appealed.</span></p>
<p style="line-height: 18pt; background: white; margin: 0in 0in 12.75pt; text-align: justify;"><span style="font-family: 'Open Sans','serif'; color: #303030;">The Appellate Division, First Department reversed the lower court decision. While the Appellate Division acknowledge the assumption of risk defense, they held the lower court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant’s duty of care but it does not exculpate a landowner from liability for ordinary negligence in maintaining its premises. The Appellate Division found that the defendant failed to properly maintain the court and that dust was not an open and obvious condition or inherent in the sport of basketball. The Appellate Division likened dust on the basketball court to a tennis player that trips on a torn net; not a risk inherent in the sport of tennis so as to relieve a premises owner of liability, as a matter of law.</span></p>
<p style="line-height: 18pt; background: white; margin: 0in 0in 12.75pt; text-align: justify;"><span style="font-family: 'Open Sans','serif'; color: #303030;">Thanks to Paul Vitale for his contribution to this post.  Please contact </span><a href="mailto:gcoats@wcmlaw.com"><span style="font-family: 'Open Sans','serif'; color: #1982d1;">Georgia Coats</span></a><span style="font-family: 'Open Sans','serif'; color: #303030;"> with any questions.</span></p>