TREVETT v. CITY OF LITTLE FALLS (2005)

Plaintiff commenced this action to recover for injuries sustained by his 16-year-old son, who collided with one of two poles supporting the backboard of an outdoor basketball court owned by defendant.   According to plaintiff, defendant negligently placed the support poles too close to the end line of the basketball court, thereby creating a “collision hazard.”   Supreme Court erred in denying defendant's motion for summary judgment dismissing the amended complaint.   Plaintiff's son “assumed the risks inherent in playing on the outdoor basketball court where he sustained his injuries, including those risks associated with the construction of the court and any open and obvious conditions on it” (Walner v. City of New York, 243 A.D.2d 629, 629, 668 N.Y.S.2d 903;  see Maddox v. City of New York, 66 N.Y.2d 270, 277-278, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Smith v. Village of Hempstead, 264 A.D.2d 413, 693 N.Y.S.2d 240).   Here, the record establishes that the support poles were “clearly visible,” and thus the risk of colliding with one of them “was the ‘perfectly obvious' type of harm inherent in playing basketball on that court ․ and one [that plaintiff's son], an experienced basketball player, consented to by electing to participate in the activity” (McKey v. City of New York, 234 A.D.2d 114, 115, 650 N.Y.S.2d 706, quoting Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  see Sykes v. County of Erie, 263 A.D.2d 947, 695 N.Y.S.2d 454, affd. 94 N.Y.2d 912, 707 N.Y.S.2d 374, 728 N.E.2d 973;  Green v. City of New York, 263 A.D.2d 385, 693 N.Y.S.2d 43;  Sheridan v. City of New York, 261 A.D.2d 528, 690 N.Y.S.2d 620).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the amended complaint is dismissed.

We respectfully dissent.   In our view, Supreme Court properly denied defendant's motion for summary judgment dismissing the amended complaint.   By submitting, inter alia, the affidavit of an expert in opposition to the motion, plaintiff raised an issue of fact whether the design and placement of the two poles supporting the backboard of the basketball court “created a risk beyond those inherent in the sport of basketball” (Stackwick v. Young Men's Christian Assn. of Greater Rochester, 242 A.D.2d 878, 879, 662 N.Y.S.2d 910).   Plaintiff's submissions in opposition to the motion also raised an issue of fact whether the design and placement of the poles “caused or contributed to [the] injuries” sustained by plaintiff's son (id.).

MEMORANDUM: