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Assumption of Risk Extends to Construction of Baseball Field

Plaintiff, while playing baseball, fell on a concrete pathway adjacent to the outfield while running to catch a ball.  The Second Department determined the doctrine of primary assumption of risk applied to risks associated with the construction of the playing field:

…[T]he Supreme Court properly granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them based on the doctrine of primary assumption of risk. That doctrine extends to those risks associated with the construction of the playing field and any open and obvious condition thereon…, as well as risks involving less than optimal playing conditions …. The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff assumed the risk of injury by voluntarily participating in the softball game, thereby consenting to the commonly appreciated risks which are inherent in and arise out of the sport generally and flow from such participation, including those open and obvious risks associated with the construction of and conditions upon the playing field … .  Mattas v Town of Hempstead, 2013 NY Slip Op 03464, 2nd Dept, 5-15-13

 

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NEW YORK DOES NOT RECOGNIZE SPOLIATION OF EVIDENCE AS AN INDEPENDENT TORT, THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
ONE INCH DEEP DEPRESSION IN THE ROADWAY WHICH WAS SURROUNDED BY ORANGE MARKINGS WAS NOT DEMONSTRATED TO BE TRIVIAL OR BOTH ‘OPEN AND OBVIOUS’ AND ‘NOT INHERENTLY DANGEROUS’ AS A MATTER OF LAW, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
MUNICIPALITY CAN BE LIABLE FOR NEGLIGENT MAINTENANCE OF A DRAINAGE SYSTEM, NUISANCE CAUSE OF ACTION WAS DUPLICATIVE OF THE NEGLIGENT MAINTENANCE CAUSE OF ACTION (SECOND DEPT).
FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT).
THE JUDGE IN THIS SIDEWALK SLIP AND FALL CASE FAILED TO ADEQUATELY EXPLAIN TO THE JURY THE DIFFERENT DUTIES OWED BY THE TENANT AND THE OWNER OF THE BUILDING ABUTTING THE SIDEWALK; THE MOTION TO SET ASIDE THE PLAINTIFF’S VERDICT SHOULD HAVE BEEN GRANTED; IN ADDITION, THE SECOND DEPARTMENT HELD DAMAGE AWARDS FOR PLAINTIFF’S INJURED ANKLE WERE EXCESSIVE (SECOND DEPT).
A PRIVILEGE LOG WHICH IDENTIFIES WITHHELD DOCUMENTS BY CATEGORY INSTEAD OF INDIVIDUALLY VIOLATES CPLR 3122 (B) (SECOND DEPT).
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