A New York state appeals court has reversed a trial court, reasoning that the doctrine of the assumption of the risk applied in a case involving a man who hurt himself during a round of golf and subsequently sued the golf course to recover damages.
Jeffrey D. Conrad claimed is his lawsuit that the injury occurred after he ascend a stairway used to access the tee box on the twelfth hole and then took a measurement from the tee box using his range finder. When he went to return to his golf cart to select a club, he stepped onto the landing at the top of the stairway, slipped on a wooden board, and fell, suffering severe injuries to both of his knees.
In response to the lawsuit, the golf facility and other defendants moved for summary judgment arguing that the plaintiff assumed the risks associated with playing golf. The trial court denied the motion, sparking the appeal.
The appeals court noted that the doctrine of assumption of the risk acts as a complete bar to recovery where a plaintiff is injured in the course of a sporting or recreational activity through a risk inherent in that activity, citing Turcotte v Fell, 68 NY2d 432, 438-439 [1986].
“As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (id. at 439, citing Maddox v City of New York, 66 NY2d 270, 277-278 [1985]). ” ‘It is not necessary to the application of assumption of [the] 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’ ” (Yargeau v Lasertron, 128 AD3d 1369, 1371 [4th Dept 2015], lv denied 26 NY3d 902 [2015], quoting Maddox, 66 NY2d at 278). “The doctrine of primary assumption of the risk, however, will not serve as a bar to liability if the risk is unassumed, concealed, or unreasonably increased” (Ribaudo v La Salle Inst., 45 AD3d 556, 557 [2d Dept 2007], lv denied 10 NY3d 717 [2008]).
In the instant case, the defendants “established on their motion that the plaintiff was an experienced golfer who had played defendants’ golf course several times in the past (see Kirby v Drumlins, Inc., 145 AD3d 1561, 1562 [4th Dept 2016]),” wrote the appeals court. “Moreover, the defendants demonstrated that, at the time of the incident, the plaintiff knew that the course was still wet from rain that had just fallen, and that he was familiar with the stairway in question, having just used it moments before his accident. For those reasons, we conclude that the defendants met their initial burden by establishing that the plaintiff was aware of the risk posed by the stairway and assumed it (see id. at 1562-1563; Bryant v Town of Brookhaven, 135 AD3d 801, 802-803 [2d Dept 2016]; Mangan v Engineer’s Country Club, Inc., 79 AD3d 706, 706 [2d Dept 2010]).”
Furthermore, the plaintiffs failed to raise “a triable issue of fact” whether he was subjected to “unassumed, concealed or unreasonably increased risks” (Benitz v New York City Bd. of Educ., 73 NY2d 650, 658 [1989]; see Morgan v State of New York, 90 NY2d 471, 485 [1997]).
“Even assuming, arguendo, that the condition of the stairs was ‘less than optimal’ because anti-slip guards were not extended onto the portion of the landing where the plaintiff fell, that does not create an issue of fact under the assumption of the risk doctrine (Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012]),” concluded the appeals court.
Jeffrey D. Conrad and Katherine M. Conrad v. Holiday Val., Inc.; Appellate Division, Fourth Department, N.Y.; Slip Op 05333; 10/2/20
