Wade Clark Mulcahy LLP

<p style="text-align: justify;">This week, we bring you a slip and fall involving a softball game in Smithtown, NY. In<em> <a href="https://www.wcmlaw.com/wp-content/uploads/2021/03/Chiaramonte.pdf">Chiaramonte</a> v. Town of Smithtown,</em> 2021 NY Slip Op 01244 (2d Dept. 2021), defendants were granted summary judgment dismissal of all claims for a plaintiff who slipped and fell on muddy field conditions while she was playing a charity softball game organized by defendants. The defendants won dismissal by arguing that the plaintiff assumed the risks of injury when she played that day.</p>
<p style="text-align: justify;">Under the legal doctrine of assumption of risk, “if the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be.” (<em>Brown v City of New York</em>, 69 A.D.3d 893, 893; see Morgan v State of New York, 90 N.Y.2d 471, 484). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see <em>E.B. v Camp Achim,</em> 156 A.D.3d 865, 866).</p>
<p style="text-align: justify;">The plaintiff testified that she knew it rained the day prior, she saw the field was muddy before playing the game, and she was a softball player and coach who knew the risks of injury involved. The Second Department concluded that plaintiff assumed the risks of injury under the circumstances, and defendants could not have done anything to make the field safer under the conditions. For these reasons, the court upheld the trial court’s dismissal.</p>
<p style="text-align: justify;">This case highlights the often-overlooked area of assumption of risk for certain activities. Defendants should ensure that they obtain the necessary discovery to support the argument of assumption of risk in cases involving recreational activities.</p>
<p style="text-align: justify;">Thanks to Raymond Gonzalez for his contribution to this post. Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.</p>