BROWN v. CITY OF NEW YORK

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Supreme Court, Appellate Division, Second Department, New York.

George BROWN, respondent, v. CITY OF NEW YORK, appellant.

Decided: January 26, 2010

A. GAIL PRUDENTI, P.J., WILLIAM F. MASTRO, ANITA R. FLORIO, and LEONARD B. AUSTIN, JJ. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Dara Olds of counsel), for appellant. Eric Richman, New York, N.Y. (Judith F. Stempler of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated December 3, 2008, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff was injured while playing touch football at a public field owned by the defendant when he dove for the football at the sideline and his knee struck a cement strip which ran alongside the field approximately five feet outside of the sideline.   The plaintiff had played at the field previously and was aware of the presence of the cement strip, which was open and obvious.   Indeed, he testified at his deposition that the cement was there for the purpose of holding down the artificial turf surface of the field.

Following the plaintiff's commencement of this negligence action, the defendant moved for summary judgment dismissing the complaint on the ground of primary assumption of risk.   The Supreme Court denied the motion.   We reverse.

 A voluntary participant in a sporting or recreational activity is deemed to consent 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 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).   This principle extends to those risks associated with the construction of the playing field and any open and obvious condition thereon (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).   If the risks are known by or perfectly obvious to the player, he or she has consented to them and the property owner has discharged its duty of care by making the conditions as safe as they appear to be (see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964;  Morales v. Coram Materials Corp., 64 A.D.3d 756, 758, 883 N.Y.S.2d 311;  Joseph v. New York Racing Assn., 28 A.D.3d 105, 108, 809 N.Y.S.2d 526).

 The defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the plaintiff assumed the risk of injury by voluntarily participating in the football game despite his knowledge that doing so could bring him into contact with the open and obvious cement strip in the out-of-bounds area of the field (see Trevett v. City of Little Falls, 6 N.Y.3d 884, 816 N.Y.S.2d 738, 849 N.E.2d 961;  Ribaudo v. La Salle Inst., 45 A.D.3d 556, 846 N.Y.S.2d 209;  Ciocchi v. Mercy Coll., 289 A.D.2d 362, 735 N.Y.S.2d 144;  Kazlow v. City of New York, 253 A.D.2d 411, 676 N.Y.S.2d 229).   In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant unreasonably increased the risk associated with the activity of playing football on the subject field.   In this regard, the expert affidavit submitted by the plaintiff failed to identify the violation of any specific safety standard which was applicable to the field (see Musante v. Oceanside Union Free School Dist., 63 A.D.3d 806, 881 N.Y.S.2d 446;  Miller v. Kings Park Cent. School Dist., 54 A.D.3d 314, 863 N.Y.S.2d 232;  Ribaudo v. La Salle Inst., 45 A.D.3d 556, 846 N.Y.S.2d 209;  Merson v. Syosset Cent. School Dist., 286 A.D.2d 668, 730 N.Y.S.2d 132;  Kazlow v. City of New York, 253 A.D.2d 411, 676 N.Y.S.2d 229).   Accordingly, the expert's affidavit was speculative and conclusory (see generally Sosa v. City of New York, 281 A.D.2d 469, 721 N.Y.S.2d 565;  Scola v. Sun Int'l. N.A., 279 A.D.2d 466, 719 N.Y.S.2d 107), and was insufficient to defeat the defendant's motion for summary judgment.

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