Springtime in New York means Little League, playing in the park … and “assumption of the risk.”

            “Assumption of the Risk” is a little known doctrine in New York Law that allows the Court to dismiss your case for any injury that is considered to be inherent in the activity.  For example, if you break a leg playing football the case will probably be dismissed because that is a risk associated with the sport. See, Trupia v. Lake George Central School District, 14 N.Y.3d 392 (2010).  However, your case can also be dismissed if the injury was caused by a defect in the playing surface that was open and obvious.  If an athlete is injured as a result of a defect in, or feature of, the field, court, track, or course upon which the sport/activity is being played, the owner of the premises will be protected by the doctrine of primary assumption of risk as long as risk presented by the condition is inherent in the sport.  If the playing surface is as safe as it appears to be, and the condition in question is not concealed such that it unreasonably increases risk assumed by the players, the doctrine applies. 

            For example, in Calise v. City of New York, 239 A.D.2d 378 the plaintiff was thrown from a mountain bike, which he was riding on an unpaved dirt and rock path in a park, when the bike struck an exposed tree root. This Court held that the plaintiff's action was barred by the doctrine of primary assumption of risk, reasoning that “[a]n exposed tree root is a reasonably foreseeable hazard of the sport of biking on unpaved trails, and one that would be readily observable.”  On the other hand, in Cotty v. Town of Southampton, 64 A.D.3d 251 (2d Dept. 2009) the same Court found that a person riding a bicycle on a paved roadway (even when riding a high speed in tight groups) does not “assume” the risks associated with a negligently maintained road and dangerous conditions created by roadwork being performed on the roadway. 

            In Gallagher v. County of Nassau, 74 A.D.3d 877 (2d Dept. 2010) the Court held that a plaintiff could maintain a lawsuit when he was injured while trying to make a diving catch while playing softball where his injury was caused by a small, round cement object which he had not seen or encountered previously and which had been permanently installed in fair territory in the outfield, apparently to assist in drawing lines on the field when it was used for soccer.  The rationale of the Court was that while participants in sporting events assume the known, apparent, and reasonably foreseeable risks of their participation they do not consent to risks which are concealed, unassumed, or unreasonably increased.  However, the same Court recently dismissed the case in Palladino v. Lindenhurst Union Free School District, where an 11 year old boy who was injured while playing handball at the school.  His injury was caused by a dangerously installed air-intake grate on the handball court.  The Court dismissed the case because the boy knew that the grate was improperly placed (leaving a 3-6 inch gap hole in the court) and was warned that the area of the court was dangerous.   In short, the answer to whether you can successfully bring a lawsuit in these cases will depend on what you knew at the time of the accident.