In a majority ruling, a New York state appeals court has affirmed the ruling of a trial court that a basketball player assumed the risk of injury when he fell into a chain-link fence along the end line of a basketball court.
On June 7, 2014, Ryan Franco was playing basketball on an outdoor court when he suffered an injury after he fell into a chain-link fence along the end line of the court. The fence was located between the backboard and its supporting post, which had been installed beyond the end line and outside of the basketball court.
Franco filed a personal injury lawsuit against 1200 Master Association, Inc., which was responsible for maintaining the court, claiming the court was defective, because “the fence was placed too close to the court in contravention of accepted industry standards.”
The defendant moved for summary judgment, arguing that the action was barred by the doctrine of primary assumption of risk. The trial court granted the defendant’s motion, leading to the appeal.
The appeals court noted that under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421; see Custodi v Town of Amherst, 20 NY3d 83, 88, 980 N.E.2d 933, 957 N.Y.S.2d 268; Zachary G. v Young Israel of Woodmere, 95 AD3d 946, 946, 944 N.Y.S.2d 203). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (Mamati v City of N.Y. Parks & Recreation, 123 AD3d 671, 672, 997 N.Y.S.2d 731; see Morgan v State of New York, 90 NY2d at 484).
“Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care (see Turcotte v Fell, 68 NY2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49). If the risks are known by or perfectly obvious to the player, 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 (see id. at 439; Brown v City of New York, 69 AD3d 893, 893, 895 N.Y.S.2d 442).”
The appeals court noted that the defendants “made a prima facie showing of entitlement to judgment (based on the doctrine) by demonstrating that the proximity of the fence to the court was open and obvious, and thus, the risk of collision with the fence was inherent in playing on that court (see Trevett v City of Little Falls, 6 NY3d 884, 885, 849 N.E.2d 961, 816 N.Y.S.2d 738; Perez v New York City Dept. of Educ., 115 AD3d 921, 922, 982 N.Y.S.2d 577; Ribaudo v La Salle Inst., 45 AD3d 556, 557, 846 N.Y.S.2d 209; Reynolds v Jefferson Val. Racquet Club, 238 AD2d 493, 494, 657 N.Y.S.2d 907; see also Sykes v County of Erie, 94 N.Y.2d 912, 728 N.E.2d 973, 707 N.Y.S.2d 374).
“In opposition, the plaintiff failed to raise a triable issue of fact as to whether the placement of the fence created a risk beyond those inherent to the sport of basketball, as there was no evidence in the record that the location of the fence violated ‘prevailing industry standards’ relating to basketball courts (Kazlow v City of New York, 253 AD2d 411, 411, 676 N.Y.S.2d 229 [internal quotation marks omitted]; see Perez v New York City Dept. of Educ., 115 AD3d at 922; Ribaudo v La Salle Inst., 45 AD3d at 557; but see Greenburg v Peekskill City School Dist., 255 AD2d 487, 488, 680 N.Y.S.2d 622).”
Dissenting Judge Points to Expert’s Assessment of Defective Design
In a dissent, one of the justices noted that “a participant in a sporting or recreational activity does not automatically assume all the risks of injury while utilizing a sports or recreational facility that is not properly maintained for foreseeable users. The owner of a sports or recreational facility has a duty to maintain those premises in a reasonably safe condition for its foreseeable users. If the owner maintains the premises in a less than optimal condition that is nonetheless used in an ordinary manner by foreseeable users, both the owner and the user may each bear some comparative fault if an injury occurs to a person using the facility.”
Elaborating on this, the dissenting judge wrote that “the plaintiff raised a triable issue of fact for a jury to resolve. In opposition to the defendant’s motion, the plaintiff submitted the affidavit of an expert who opined that the basketball court was defectively designed because the fence was not installed at a safe distance from the court and was not properly padded. The plaintiff’s expert opined that a typical basketball court layout requires a distance of four feet from the backboard to the end line, and a minimum distance of three feet from the end line to any obstructions. By not complying with such minimum standards for basketball courts, the defendants significantly increased the risk of players running into the unprotected fence, which was on the edge of the basketball court rather than a minimum of three feet beyond the basketball court. This evidence was sufficient to raise a triable issue of fact as to whether the placement of the fence less than three feet behind the backboard created a dangerous condition over and above the usual dangers inherent in the sport of basketball (see Greenburg v Peekskill City School Dist., 255 AD2d 487, 680 N.Y.S.2d 622; see also Simone v Doscas, 142 AD3d 494, 35 N.Y.S.3d 720). Therefore, the defendant’s motion for summary judgment dismissing the complaint should be denied so that a jury may resolve this issue of fact.”
Ryan Franco v. 1200 Master Association, Inc., et al.; Supreme Court of New York, Appellate Division, Second Department; 2019 N.Y. App. Div. LEXIS 8436; 11/20/19
Attorneys of Record: (for appellant) Stevens & Traub PLLC, New York, NY (Peter P. Traub of counsel). (for respondents) Law Office of Daniel J. McCarey, LLC, New York, NY.