Assumption of Risk Does Not Save Landowner From Claims of Hidden or Uncommon Defects on Playing Field
In a seminal New York State Court of Appeals case from the 1980s, Turcotte v. Fell, 68 N.Y.2d 432 (1986), the court held that participants in sporting or recreational events may consent to injury-causing events that are “known, apparent, or reasonably foreseeable” consequences of participating in that activity. In Turcotte, the plaintiff, a jockey, sustained severe personal injuries at a racetrack, rendering him paraplegic, when his horse tripped and fell. The plaintiff argued that the owner and operator of the sports facility had negligently failed to properly water and groom the racetrack near the starting gate, rendering it unsafe, but the court held that the jockey had accepted the risk inherent in horse racing based on his own testimony that the conditions were not uncommon in the sport and that he had previously raced at the same track.
A number of cases preceding and following the Turcotte case held that when a sporting event is played on a field, the risks assumed by the players include those involved in the construction of the field—as long as the risks are known, inherent to the sport, and not concealed or unreasonably increased risks. See e.g., Hoffman v. City of New York, 172 A.D.2d 716 (2d Dep’t 1991). In contrast, courts have found triable issues of fact where the courts could not determine as a matter of law that the field conditions were known to the player and typical in the sport. See e.g., Henig v. Hofstra University, 160 A.D.2d 761 (2d Dep’t 1990).
Recently, the Appellate Division, First Department, in Martin v. City of New York, 86 N.Y.S.3d 434 (1st Dep’t 2018), unanimously reversed the Supreme Court’s decision granting the defendant’s motion for summary judgment where a plaintiff was injured while trying to jump over a hole in the defendant’s softball field. The plaintiff testified that when he stepped into the batter’s box, he had observed a nearby six-inch-deep hole that was three to four feet long and four to five feet wide, was filled with loose clay, and appeared level. After the plaintiff reached first base and other players used the batter’s box, the plaintiff ran home in an attempt to score. At that point, the hole had become more exposed, and when the plaintiff saw its size, he tried to jump over it. His foot then struck an edge of the hole that was obscured by clay, and he injured his ankle. The First Department held that due to the particular circumstances of the case, there were triable issues concerning notice of the defect, negligence in repairing the defect, whether the field was as safe as it appeared, whether the plaintiff’s injury arose from a common condition or practice of softball, and whether the plaintiff assumed the risk of playing on the field.
The Martin decision is significant for landowners and operators of sports and recreational facilities. Even if a player admittedly observes a defect on the field and continues to voluntarily participate in the game, depending on the size of the defect and whether it is concealed, a property owner may still be held liable for the defect, and assumption of risk may not apply.
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