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