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Plaintiff Hurt In A Pickup Game Found To Have Assumed The Risk Of Injury (NY)

June 17, 2022

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<p style="text-align: justify;">In <em><a href="">Lungen v. Harbors Haverstraw Homeowners Assn., Inc.</a>,</em> the New York Appellate Division, Second Department, addressed whether a plaintiff injured while playing in a basketball “pickup” game assumed the risk of his injuries. Plaintiff alleged to have fallen when he slipped on condensation on the floor of a gym. The defendants moved for summary judgment on the grounds that plaintiff had assumed the risk since humidity that day created slippery conditions.</p>
<p style="text-align: justify;">The court stated that assumption of risk is not an absolute defense but a measure of the defendant's duty of care. It observed that "participants 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." However, "[i]f the risks are known by or perfectly obvious to the player, he or she has consented to them, and the property owner has discharged its duty of care by making the conditions as safe as they appear to be."</p>
<p style="text-align: justify;">The court affirmed the trial court’s award of summary judgment in favor of defendants, finding that plaintiff assumed the gym floor would be slippery due to condensation in light of the humid conditions at that time. Plaintiff had testified that he had played basketball in that gym more than 50 times, and knew the air was humid.</p>
<p style="text-align: justify;">This decision serves as a reminder that playing sports involves certain risks, and that New York courts will apply the assumption of risk defense in cases involving injuries caused by known and obvious risks.</p>
<p style="text-align: justify;">Thank you to Corey Morgenstern for his contribution to this post. Please contact <a href="">Andrew Gibbs</a> with any questions.</p>


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