You are here: / / Question of Fact Whether Plaintiff Assumed the Risk of Injury from Colliding...

Question of Fact Whether Plaintiff Assumed the Risk of Injury from Colliding With a Window Near the Basketball Court

The Fourth Department determined plaintiff raised a question of fact whether he assumed the risk of injury from colliding with an breaking a window near the basketball court on which he was playing. Plaintiff submitted an expert affidavit alleging that the window should have been covered with a screen or otherwise made safe. Therefore, there was a question of fact whether the window represented a risk over and above the dangers inherent in the sport:

It is well settled that, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” … . “A plaintiff, however, will not be deemed to have consented to concealed or unreasonably increased risks’ ” … . Here, even assuming, arguendo, that defendant met its initial burden on the motion, we conclude that plaintiff raised a triable issue of fact by submitting the affidavit of a licensed architect who opined that the window involved in the accident did not meet industry standards for use in a gymnasium because the glass was not covered by a protective screen, nor was it laminated or tempered to withstand impact by a person … . Thus, there is a triable issue of fact whether defendant ” created a dangerous condition over and above the usual dangers that are inherent in the sport’ ” of basketball… . Barends v Town of Cheektowaga, 2015 NY Slip Op 0737, 4th Dept 10-9-15

 

You might also like
DEFENDANTS’ DEPOSITION TESTIMONY IN THIS DOG-BITE CASE RAISED QUESTIONS OF FACT ABOUT DEFENDANTS’ PRIOR KNOWLEDGE OF THE DOG’S VICIOUS PROPENSITIES, SUPREME COURT REVERSED (FOURTH DEPT).
Failure to Inform Defendant of the Period of Postrelease Supervision Required Reversal in the Absence of an Objection
COURT ERRED IN CLASSIFYING HOUSE PURCHASED BEFORE MARRIAGE AS MARITAL PROPERTY, HOWEVER THE APPRECIATION IN THE VALUE OF THE HOUSE WAS MARITAL PROPERTY.
Parole Violation Did Not Preclude Application for Resentencing Under the Drug Law Reform Act
THERE IS NO LEGAL SUPPORT FOR A ‘TRI-PARENT’ ARRANGEMENT WHERE A FORMER SAME-SEX PARTNER OF MOTHER, MOTHER AND FATHER SHARE VISITATION AND CUSTODY OF THE CHILD (FOURTH DEPT).
Tenant In “Adjacent Property” May Be Responsible for Maintenance of a Sidewalk Where the Sidewalk is Subject to Special Use by the Tenant as Part of a Driveway
ADVERSE POSSESSION AFFIRMATIVE DEFENSE SHOULD HAVE BEEN DISMISSED IN THIS LAKE FRONT PROPERTY DISPUTE, THE USE OF THE LAND WAS PERMISSIVE, NOT HOSTILE (FOURTH DEPT).
Duration of Supervised Visits Cannot Be Left Up to Supervising Agency

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Question of Fact Whether Plaintiff’s Conduct, Placing Ladder on Ice, Was... Question of Fact Whether the Municipality Created the Road Defect Thereby Negating...