A New York state appeals court has ruled that a soccer player, who tripped over an exposed manhole cover and collided with a fence, assumed the risk of the accident because he knew about the conditions prior to the accident.
The incident that led to the litigation occurred while the plaintiff was playing soccer on a field at the Parade Grounds in Brooklyn. The plaintiff tripped on a raised manhole cover and struck his face on an adjacent fence, sustaining various personal injuries.
He then sued the City of New York and the New York City Parks Department. The defendants successfully moved for summary judgment.
On appeal, the plaintiff argued that “the City failed to maintain the manhole to assure that it was not raised, and also failed to maintain the fence, resulting in a hazard if a person fell.”
“The doctrine of assumption of risk is a form of measurement of a defendant’s duty to a voluntary participant in a sporting activity (see Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 657, 541 N.E.2d 29, 543 N.Y.S.2d 29),” wrote the appeals court.
“The voluntary participant is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only from unassumed, concealed, or unreasonably increased risks, thus to make conditions as safe as they appear to be (see Morgan v State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; Lapinski v Hunter Mtn. Ski Bowl, 306 A.D.2d 320, 760 N.Y.S.2d 549). The plaintiff acknowledged at the hearing pursuant to General Municipal Law § 50-h that he noticed the raised manhole on the previous occasion that he played soccer at the field. At his examination before trial, the plaintiff indicated that, on the date of his accident, but prior to it, he was aware of the presence of the raised manhole cover, and that the fence was in disrepair. The plaintiff accordingly assumed the risk of the injuries which he sustained in the accident (see Sykes v County of Erie, 94 N.Y.2d 912, 913, 728 N.E.2d 973, 707 N.Y.S.2d 374; Joseph v New York Racing Assn., ___ A.D.3d ___, 809 N.Y.S.2d 526 [2d Dept, Feb. 7, 2006]; Ciocchi v Mercy Coll., 289 A.D.2d 362, 735 N.Y.S.2d 144).”
Rony Manoly v. City of New York, et al.; S.Ct.N.Y., App. Div., 2d. Dept.; 2004-11175, (Index No. 45423/96); 2006 NY Slip Op 3737; 2006 N.Y. App. Div. LEXIS 6301; 5/9/06
Attorneys of Record: (for plaintiff) Steven Giano, Astoria, N.Y. (Paula Schwartz Frome of counsel). (for defendants) Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel).
The Attorneys Speak
(From Francis F. Caputo):
“In our view, this decision does not break new ground with the doctrine of implied assumption of the risk, but follows established precedents in New York. The plaintiff was an adult who was experienced at soccer and had played on that field in the past and was familiar with the conditions there. A raised manhole cover is an unusual utility item to find on a playing field, but it was completely visible and plaintiff had seen it. Plaintiff attempted to argue that the missing wire mesh in the fence that bordered the field should be treated like the torn tennis netting between courts in another New York case where a jury question was found to exist. Here, the missing wire mesh in the fence did not contribute to plaintiff’s injury (he ran into the steel support bar, which would have been there whether or not the wire mesh was in place) and the condition of the fence was open and visible to plaintiff and is commonly found around City sports fields to restrict access.”
