PLAINTIFF ASSUMED THE RISK OF STEPPING IN A CRACK OR HOLE IN AN OUTDOOR ASPHALT BASKETBALL COURT (SECOND DEPT).

The Second Department determined plaintiff’s personal injury action against the city was properly dismissed under the doctrine of primary assumption of risk. Plaintiff was playing basketball on an asphalt court and stepped into a crack or hole on the court. The concurrence expressed displeasure with the result in this case but acknowledged the court was constrained by precedent:

Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care … . The defendant’s duty is “to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty”… .  This includes risks associated with the construction of the playing surface and any open and obvious condition on it, including less than optimal conditions … However, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport … .

… [T]he defendant’s submissions in support of its motion, which included transcripts of the plaintiff’s deposition testimony and his testimony at the hearing held pursuant to General Municipal Law § 50-h and photographs depicting the accident site, reveal that the crack or hole in the surface of the basketball court which allegedly caused the plaintiff’s accident was clearly visible and the somewhat irregular nature of the surface was apparent … . Cruz v City of New York, 2021 NY Slip Op 04658, Second Dept 8-11-21