top of page


Sand traps and Other Litigation Hazards (NY)

August 2, 2017

Share to:

John MacIsaac was walking from the 12th green to the 13th tee box on a public golf course at Eisenhower Park when he  tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. In the ensuing wrongful death litigation, <a href="">MacIsaac v. Nassau County</a><em>, </em>the question became whether MacIsaac had assumed the risk of a participant in a recreational sporting contest.
A party is deemed to have assumed the risk associated with an activity when engaging in sport or recreation, but only with respect to the commonly appreciated risks inherent in and arising out of the nature of the sport generally. This assumption of risk would apply to risks involved in the playing surface and open and obvious conditions.  However, if there were a concealed condition on the golf course or the inherent risks of golf were somehow unreasonably increased, the doctrine would not apply.
The County of Nassau sought summary judgment on the basis of this legal theory. In granting this motion, the judge rejected evidence submitted by plaintiff to oppose the motion, including plaintiff’s photographs, due to a purported violation of CPLR 3101, i.e. failure to disclose an authenticating witness.  Likewise, the plaintiff’s expert was disqualified as he relied upon the photographs.
The Second Department considered the admissibility of the supporting evidence in opposition, as well as the underlying theory of the case in overturning the dismissal of plaintiff’s case. The court found that authenticating information for the photographs was not necessary and that the expert opinion should have been considered.  After considering all of the evidence, the higher court held that plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course.
Thanks to Vincent Terrasi for his contribution.
For more information, contact Denise Fontana Ricci at <a href=""></a>.


bottom of page