You are here: / / PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE...

PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the benches near the field where plaintiff was playing football were open and obvious and plaintiff had assumed the risk of tripping over them:

​

Under the doctrine of primary assumption of risk, “[i]f the risks of [a sporting] activity are fully comprehended or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be” … . “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” … . “This includes risks associated with the construction of the playing surface and any open and obvious condition on it” …  “If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be” … .

Here, according to the infant plaintiff’s deposition testimony, which the defendants submitted in support of their motion, there was nothing marking the area where the benches were located as the end zone, but if the ball was caught in the vicinity of the bench, the campers would consider that a touchdown. The infant plaintiff also testified that he flipped over one of the benches as he was running for a pass and that, prior to turning to catch the ball, he had run the full length of the field looking ahead toward the benches, which were situated alongside the volleyball courts. Consequently, the bench was open, obvious, clearly visible, and known to the infant plaintiff … . Since the infant plaintiff, who had been playing football on this field for more than an hour when the accident occurred, was aware of that condition and voluntarily chose to play on the field, he assumed the risk of injury of colliding into one of the benches when attempting to score … . E.B. v Achim, 2017 NY Slip Op 09115, Second Dept 12-27-17

 

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/SLIP AND FALL (SPORTS, PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/ASSUMPTION OF THE RISK (PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))/SPORTS (SLIP AND FALL, PLAINTIFF ASSUMED THE RISK OF TRIPPING OVER BENCHES NEAR THE FIELD WHERE HE WAS PLAYING FOOTBALL, SUPREME COURT REVERSED (SECOND DEPT))

You might also like
Gun Found In Juvenile’s Shoe (After Juvenile Was Told to Remove His Shoes) Should Have Been Suppressed—Juvenile Could Not Be Arrested and Detained for a Violation (Disorderly Conduct Is Not a Crime) and Nothing More than a Frisk Is Justified During a Temporary Detention Pending the Arrival of a Juvenile’s Parents
AN ORDER DISMISSING AN ACTION DOES NOT CONCLUDE THE ACTION WHICH CAN ONLY BE ACCOMPLISHED BY FINAL JUDGMENT ENTERED BY THE CLERK; HERE, ALTHOUGH THE ACTION HAD BEEN DISMISSED BY AN ORDER, ABSENT A JUDGMENT THE ACTION REMAINED VIABLE AND THE COURT SHOULD HAVE CONSIDERED PLAINTIFF’S POST-DISMISSAL MOTION ON THE MERITS (SECOND DEPT).
THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).
IF A DEFENDANT CHALLENGES THE LEGALITY OF HIS ARREST, THE PEOPLE MUST PROVE THE ARREST WAS BASED UPON PROBABLE CAUSE; THE ISSUANCE OF AN I-CARD DEMONSTRATING PROBABLE CAUSE IS NOT, BY ITSELF, ENOUGH; THERE MUST BE TESTIMONY AT THE SUPPRESSION HEARING DEMONSTRATING THE ARREST WAS IN FACT BASED ON THE INFORMATION IN THE I-CARD (SECOND DEPT).
Plaintiff’s Deposition Testimony Stating that She Did Not Know the Cause of Her Fall Was Fatal to the Action—the Deposition Testimony Was Not Overcome by a “Feigned Issue” Subsequently Raised in an Affidavit or by Expert Opinion Evidence Alleging the Cause of the Fall
THE ORIGINAL CHILD SUPPORT ORDER WAS ISSUED IN VIRGINIA, WHERE FATHER RESIDES; FATHER’S NEW YORK CHILD SUPPORT PETITION WAS ACTUALLY SEEKING MODIFICATION OF THE VIRGINIA ORDER; NEW YORK THEREFORE DID NOT HAVE JURISDICTION OVER FATHER’S PETITION (SECOND DEPT).
PLAINTIFF UNABLE TO IDENTIFY THE CAUSE OF HIS FALL, DEFENDANT SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT.
LIQUIDATED DAMAGES PROVISION IN THIS LEASE AGREEMENT WAS AN UNENFORCEABLE PENALTY.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANTS DID NOT HAVE NOTICE OF THE DEPRESSION OR HOLE PLAINTIFF STEPPED INTO,... QUESTION OF FACT WHETHER DEFENDANT’S EMPLOYEE SAW WHAT HE SHOULD HAVE...