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PLAINTIFF WAS DEEMED TO HAVE ASSUMED THE RISK OF PLAYING CRICKET ON A COURT WITH AN OPEN AND OBVIOUS CRACK (SECOND DEPT).

The Second Department determined defendants’ summary judgment motion was properly granted in this slip and fall, assumption of the risk case. Plaintiff alleged he stepped in a hole inside a crack in a tennis court while playing cricket. The crack was deemed open and obvious:

“Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care” … . The defendants’ 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” . “It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results” … . “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” … . Further, “the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises” … .

Here, the defendants’ submissions in support of their motion, which included the plaintiff’s deposition testimony and photographs allegedly depicting the accident site, reveal that the crack in the surface of the subject tennis courts, which allegedly caused the plaintiff’s accident, was clearly visible … . In opposition, the plaintiff failed to raise a triable issue of fact as to whether the open and obvious crack concealed the depth and extent of the alleged hole … . Maharaj v City of New York, 2021 NY Slip Op 06841, Second Dept 12-8-21

 

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THE COMPUTATIONS IN THE REFEREE’S REPORT IN THIS FORECLOSURE ACTION WERE... DEFENDANT PROPERTY OWNER DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF ANY DEFECTS...