CHIARAMONTE v. TOWN OF SMITHTOWN

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

Tricia CHIARAMONTE, appellant, v. TOWN OF SMITHTOWN, et al., respondents.

2018–06292

Decided: March 03, 2021

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ. Joseph C. Tonetti, P.C. (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant. Segal McCambridge Singer & Mahoney, Ltd., New York, N.Y. (Carla Varriale of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injures, the plaintiff appeals from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated March 15, 2018.  The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On May 10, 2014, the plaintiff was playing in a charity softball tournament sponsored by the defendants at Flynn Memorial Park in Smithtown when she slipped on a muddy surface of one of the fields thereat as she ran from second to third base, allegedly injuring herself.  The plaintiff subsequently commenced the instant action to recover damages for personal injuries against the defendants, alleging that they were negligent in, inter alia, the maintenance of the subject field.  After issue was joined and the plaintiff filed the note of issue, the defendants moved for summary judgment dismissing the complaint on the ground, among others, that the plaintiff assumed the risk of her injuries.  The Supreme Court granted the motion, and the plaintiff appeals.

Under the doctrine of primary assumption of risk, “[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], 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” (Brown v. City of New York, 69 A.D.3d 893, 893, 895 N.Y.S.2d 442;  see Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202).  Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see E.B. v. Camp Achim, 156 A.D.3d 865, 866, 67 N.Y.S.3d 666).  Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks (see Morgan v. State of New York, 90 N.Y.2d at 485, 662 N.Y.S.2d 421, 685 N.E.2d 202).

Here, the evidence submitted in support of the defendants’ motion, which included, among other things, the plaintiff's General Municipal Law § 50–h hearing testimony, demonstrated, prima facie, that the doctrine of primary assumption of risk applied to this case and required dismissal of the complaint.  The plaintiff admitted at her General Municipal Law § 50–h hearing to observing that the field on which she was injured was “pretty muddy” prior to her accident, and testified at her deposition that she knew that it had rained the day before the accident.  The plaintiff, a seasoned softball player and coach, further testified at her deposition that she had played softball previously in the rain and was fully aware that she could be injured at any time playing softball.  The evidence submitted in support of the motion demonstrated that the plaintiff knew of the muddy conditions on the subject field and voluntarily chose to play anyway, and that she was readily aware of the risks inherent in the game of softball.  Thus, she assumed the risk of slipping on mud on this field at the time of the subject accident (see Perez v. City of New York, 118 A.D.3d 686, 686, 986 N.Y.S.2d 850;  Wilck v. Country Pointe at Dix Hills Homeowners Assn., Inc., 111 A.D.3d 822, 975 N.Y.S.2d 145;  O'Connor v. Hewlett–Woodmere Union Free Sch. Dist., 103 A.D.3d 862, 959 N.Y.S.2d 750;  Stadelmaier v. Town of Tonawanda, 2 A.D.3d 1369, 768 N.Y.S.2d 868;  Swan v. Town of Grand Is., 234 A.D.2d 934, 652 N.Y.S.2d 166;  Totino v. Nassau County Council of Boy Scouts of Am., 213 A.D.2d 710, 625 N.Y.S.2d 51;  Giovinazzo v. Mohawk Val. Community Coll., 207 A.D.2d 980, 617 N.Y.S.2d 90;  Strauss v. Town of Oyster Bay, 201 A.D.2d 553, 607 N.Y.S.2d 730).  In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint.

AUSTIN, J.P., HINDS–RADIX, CONNOLLY and BRATHWAITE NELSON, JJ., concur.

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