TOOLE v. LONG ISLAND JUNIOR SOCCER LEAGUE INC (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (James Hudson, J.), dated October 22, 2015.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Jonathan O'Toole (hereinafter the infant plaintiff), an experienced youth soccer player, allegedly was injured during a soccer game when his cleat became stuck in a drainage grate which surrounded the perimeter of and was adjacent to the high school athletic field upon which he was playing.  The infant plaintiff, and his mother suing derivatively, commenced this action against the defendants, soccer organizations under whose auspices the game was conducted and the school district which owned the field.  The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion, reasoning that the infant plaintiff had assumed the risk of his injury.  The plaintiffs appeal, and we affirm.

“Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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’ ” (Brown v. Roosevelt Union Free Sch. Dist., 130 A.D.3d 852, 853, 14 N.Y.S.3d 140, quoting Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202;  see Custodi v. Town of Amherst, 20 N.Y.3d 83, 88, 957 N.Y.S.2d 268, 980 N.E.2d 933).  “This principle extends to those risks associated with the construction of the playing field and any open and obvious condition thereon” (Brown v. City of New York, 69 A.D.3d 893, 893, 895 N.Y.S.2d 442;  see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 826 N.Y.S.2d 598, 860 N.E.2d 60;  Sykes v. County of Erie, 94 N.Y.2d 912, 707 N.Y.S.2d 374, 728 N.E.2d 973;  Maddox v. City of New York, 66 N.Y.2d 270, 496 N.Y.S.2d 726, 487 N.E.2d 553;  Manoly v. City of New York, 29 A.D.3d 649, 816 N.Y.S.2d 499;  Colucci v. Nansen Park, 226 A.D.2d 336, 640 N.Y.S.2d 578;  Brown v. City of Peekskill, 212 A.D.2d 658, 622 N.Y.S.2d 772).

Here, the defendants established their prima facie entitlement to judgment as a matter of law on the ground that the doctrine of primary assumption of risk barred the injured plaintiff's recovery.  The evidence submitted by the defendants included, inter alia, the pretrial testimony of the infant plaintiff that his accident occurred when he ran onto the drainage grate only a few feet from the edge of the field while he was retrieving a ball that had traveled out of bounds during the game.  He further conceded that in order to gain access to the field, he had to walk over the silver-colored drainage grate that surrounded the perimeter of the field.  Moreover, the photographs submitted in support of the motion confirmed the open and obvious nature of the grate, and there was no evidence that the grate was concealed or defective in any manner.  In opposition to the defendants' motion, the plaintiffs merely offered speculative expert opinions and failed to raise a triable issue of fact.  Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment on the ground that the injured plaintiff assumed the risk of coming in contact with the open and obvious grate while engaging in the soccer game (see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  E.B. v. Camp Achim, 156 A.D.3d 865, 866, 67 N.Y.S.3d 666;  Safon v. Bellmore–Merrick Cent. High Sch. Dist., 134 A.D.3d 1008, 1009, 22 N.Y.S.3d 233;  Mattas v. Town of Hempstead, 106 A.D.3d 884, 885, 965 N.Y.S.2d 554;  Brown v. City of New York, 69 A.D.3d at 894, 895 N.Y.S.2d 442;  Joseph v. New York Racing Assn., 28 A.D.3d 105, 108, 809 N.Y.S.2d 526).

In light of the foregoing, we do not reach the parties' remaining contentions.

MASTRO, J.P., CHAMBERS, SGROI and MALTESE, JJ., concur.