By William H. Gray, Esq. – Senior Associate Attorney at Segal McCambridge Singer & Mahoney Ltd.
Every athlete knows – without risk, there’s no reward. But could the price be more than they expected? The New York State Court of Appeals recently addressed this question in Parnand Maharaj v City of New York, et al. where the New York Supreme Court’s decision granting the City of New York summary judgement based upon the doctrine of primary assumption of the risk was affirmed. See Parnand Maharaj v City of NY, ___NY3d___, 2025 NY Slip Op 02143 (2025).
As way of background, on August 9, 2025, Plaintiff, Parnaud Maharaj, an experienced cricket player, was participating in a recreational cricket match at Lincoln Terrace Park (hereinafter “Park”) in Brooklyn, New York as part of the Queens Cricket League. This makeshift cricket pitch was comprised of adjacent concrete tennis courts (without nets) and encompassed by a chain-link fence. The Park has played host to the Queens Cricket League for several years, as testified to by Plaintiff during his June 8, 2017 deposition.
Notwithstanding, approximately two hours into the match, Plaintiff, who was playing the position of “Long Off” (a position similar to outfield in baseball) was chasing down a batted ball when he tripped over a seven-foot-long fissure, three to four inches deep, that ran across the playing surface, causing him to sustain significant injury, including a fractured right tibia. As an initial note, it is undisputed that Lincoln Terrace Park is owned, operated and maintained by the City of New York (hereinafter “City”) and the City’s Parks and Recreations Department. As a result of his accident, on May 11, 2016, Plaintiff filed a personal injury action in the Supreme Court of Kings County, alleging allegations of negligence against the City of New York. More specifically, Plaintiff alleged the City was negligent in breaching a duty of care owed to Plaintiff, and the public as a whole, in allowing the Park to fall into a state of disrepair in the years leading up to Plaintiff’s accident.
Summary Judgement
Following the completion of discovery, the City moved for summary judgement based upon the doctrine of primary assumption of the risk, arguing Plaintiff voluntarily assumed the risk of his injuries by voluntarily electing to play cricket on the subject tennis courts despite the open and obvious nature of the alleged fissure. In support, the City relied upon the long-established precedent that “a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation.” See Morgan v. State of New York, 90 N.Y.2d 471 (1997). Additionally, the City argued that “if the risks of the activity are fully comprehended or perfectly obvious, the plaintiff has consented to them. This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it.” See Bukowski v. Clarkson University, 19 N.Y.3d 353 (2012).In addressing the condition of the tennis courts, the City cited to Cotty v. Town of Southampton, holding that the assumption of risk doctrine “has been extended to the condition of the playing surface, [such that] [i]f an athlete is injured as a result of a defect in, or feature of, the field, court , track, or course upon which the sport is being played, the owner of the premises will be protected by the doctrine.” See Cotty v. Town of Southampton, 64 A.D.3d 251 (2nd Dept 2009).
In opposition, Plaintiff argued that the doctrine of primary assumption of risk defense did not apply because “defendants’ failure to remedy the dangerous condition of the park unreasonably increased the risk of injury beyond what was inherent in recreational activity.” Plaintiff further argued that the primary assumption of risk defense “does not exculpate a landowner from ordinary negligence in maintaining its premises.” Notwithstanding, the Court found Plaintiff’s argument unavailing, holding that Plaintiff failed to raise a triable issue of facts as to whether the “open and obvious crack concealed the depth and extent of the alleged hole.” The Court found in favor of the City, dismissing the action, to which Plaintiff appealed.
Following oral arguments before the Appellate Division, Second Judicial Department, Plaintiff’s arguments were, once again, thwarted by the primary assumption of the risk defense asserted by the City. The Court reasoned that the “primary assumption of risk doctrine applies to risks in sports and recreational activities created by open and obvious conditions, and because the fissure was ‘clearly visible,’ plaintiff failed to raise a triable issue of fact.” Notwithstanding, it should be noted that two Justices concurred on constraint, arguing that the “primary assumption of risk doctrine was not intended to shield landowners from liability when they allow their property ‘to fall into a neglectful state of disrepair, completely relieving [them] of any duty to sports participants.’”
Thereafter, in a last-ditch effort, Plaintiff sought leave to appeal and certified the question of whether the Appellate Division’s decision and order were properly made. The motion was granted, and the matter was forthwithed to the highest Court in the state for clarification.
Majority Opinion
Upon review, the New York Court of Appeals found that the Appellate Division correctly held that the risks of tripping and falling while playing on an irregular surface “are inherent to the game of cricket.” The Court further opined that, based upon the record presented to them, it was clear that the record was devoid of any evidence that the irregularity in the playing field, the cracked and uneven surface of the tennis court, “unreasonably enhanced the ordinary risk of playing cricket on an irregular surface.” The Court of Appeal’s reliance on the Bukowski standard, noting that when the open and obvious nature of the playing surface is “perfectly obvious” a participant is said to have consented to them via the primary assumption of the risk doctrine.
A Cautionary Dissent
Notwithstanding, contrary to the majority’s opinion, Justice Rivera issued a scathing and cautionary dissent addressing the apparent contradictions in applying the doctrine of primary assumption of the risk. Therein, Justice Rivera argued that “tripping on a fissure that is allegedly the result of years of neglect in not a risk inherent to cricket, or any other sport.” In Justice Rivera’s view, the majority opinion flies in the face of well-established tort doctrine that a landowner is potentially liable for their failure to maintain their recreational facilities in a reasonably safe condition. He further opined that ruling any other way would directly contradict public policy and allow property owners to allow their property to fall into a state of disrepair without any recourse for potentially injured parties.
It is further argued that the lower courts, as well as the majority in the instant matter, have consistently misapplied the doctrine of primary assumption of the risk by failing to appreciate the divide between the risks inherent to the athletic activity that are known and obvious and the conditions of the venue that are “not sufficiently interwoven into the assumed inherent risks of the activity.” Such venue conditions would therefore constitute negligence in the ordinary course of any property ownership and maintenance.
In further support, Justice Rivera conducted a deep dive into relevant case law where the doctrine of primary assumption of the risk was addressed. In the most relevant case to the instant matter, Justice Rivera addressed Siegel v. City of New York where the plaintiff, while playing tennis at an indoor club owned by the City, snagged his foot in a torn vinyl hem at the bottom of a net that divided one tennis court from another, causing him to trip. See Siegel v City of NY, 86 AD3d 452 (1st Dept 2011). Here, the Court held that granting the City’s summary judgment motion was improper “because the torn divider net was not a risk inherent to tennis and the plaintiff therefore did not assume the risk of tripping on it when he played tennis on the defendant’s property.” Id. The Court further reasoned that the defective net “may constitute an allegedly negligent condition occurring in the ordinary course of any property’s maintenance and may implicate typical comparative negligence principles.” Id. Essentially, the Court found that the issue “boils down to whether [the] defendants . . . had a continuing duty to players to keep the net in good repair.” Id.
In Justice Rivera’s opinion, this is where the majority went wrong. By applying the primary assumption of the risk doctrine, the Court essentially would allow property owners to ignore any duty to participants, or athletes alike, who are unfortunate enough to sustain injury as a result of some alleged defect in the venue or playing field. This is a slippery slope that Justice Rivera was unwilling to accept.
Conclusion
Although the majority’s decision appears to be in line with the long-held principles of the primary assumption of the risk doctrine, Justice Rivera’s dissent should not be ignored, but rather should stand as a cautionary tale to property owners and athletes alike. To property owners, the warning is clear, best practice is to ensure regular venue maintenance and upkeep are adhered to. And to athletes, remember, keep your head on a swivel and be ever aware of your surroundings.
