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Question of Fact Whether Risk of Slipping on a Diving Board Was Increased by Worn Traction Strips

The Second Department determined Supreme Court should not have granted defendant’s motion for summary judgment in a slip and fall case.  Although the assumption of risk doctrine could apply to a slip and fall on a diving board, here the plaintiff alleged the traction strips on the board were unreasonably worn:

Under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” … . One “obvious” risk inherent in the recreational activity of diving is the risk of being injured from slipping on the diving board’s surface and falling off the diving board … . In moving for summary judgment dismissing the complaint on the ground that this action was barred by the doctrine of primary assumption of risk, the defendant failed to establish, prima facie, that the allegedly dangerous condition, consisting of the depleted traction strips, did not unreasonably increase the abovementioned risk … . The defendant’s submissions, which included the transcripts of a General Municipal Law § 50-h hearing and the plaintiff’s deposition, demonstrated the existence of a triable issue of fact as to whether the allegedly dangerous condition unreasonably increased that risk … . Freeman v Village of Hempstead, 2014 NY Slip Op 06298, 2nd Dept 9-24-14

 

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