The Second Department, reversing Supreme Court, determined infant plaintiff assumed the risk of stepping in a hole in a playing field on school grounds. The plaintiff was injured during a pick-up football game which was not organized by the defendant:
Under the doctrine of primary assumption of risk, a voluntary participant in a sporting activity “is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only from unassumed, concealed, or unreasonably increased risks, thus to make conditions as safe as they appear to be” … .
Here, the hole was open, obvious, clearly visible, and known to the plaintiff … . Moreover, the plaintiff and his friends understood the risk presented by the hole and set the boundaries of the playing field in order to avoid it. Since the plaintiff voluntarily chose to play on a field on which there was a faulty condition that was open and obvious, he assumed the risk of injury from stepping into the hole … . Tinto v Yonkers Bd. of Educ., 2016 NY Slip Op 03496, 2nd Dept 5-4-16
NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)/EDUCATION-SCHOOL LAW (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)/ASSUMPTION OF RISK (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)