Palladino v. Lindenhurst Union Free School DistrictPalladino v. Lindenhurst Union Free School District
Joan Palladino, Respondent, v Lindenhurst Union Free School District, Appellant. [924 NYS2d 474]—
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), entered April 16, 2010, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.
The plaintiff’s infant son, Carl Palladino (hereinafter the infant), was playing handball on the defendant’s premises when he allegedly stepped on an improperly placed grate, sustaining personal injuries. The infant was aware of the condition of the grate, having seen it prior to the incident on the date of the accident and on a prior dаte when he last played handball in the same area.
The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon (see Ziegelmeyer v United States Olympic Comm., 7 NY3d 893 [2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Maddox v City of New York, 66 NY2d 270 [1985]; Brown v City of New York, 69 AD3d 893 [2010]; Manoly v City of New York, 29 AD3d 649 [2006]; Morlock v Town of N. Hempstead, 12 AD3d 652 [2004]). Where, as here, the risks are knоwn 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 NY2d 432, 439 [1986]; Morales v Coram Materials Corp., 64 AD3d 756, 758 [2009]; Joseph v New York Racing Assn., 28 AD3d 105, 108 [2006]). The defendant demonstrated its prima facie entitlement to judgment as a matter of law by еstablishing that the infant assumed the risk of injury by voluntarily participating in the handball game despite his knowledge that doing so could bring him into contact with the open and obvious, improperly placed metal grate (see Trevett v City of Little Falls, 6 NY3d 884 [2006]; Brown v City of New York, 69 AD3d at 894; Ribaudo v La Salle Inst., 45 AD3d 556 [2007]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
In light of our determination, we need not address the merits of the parties’ remaining contentions.
Skelos, J.P., concurs in the result, and votes to reverse the order and grant the defendant’s motion for summary judgment
While dismissal of the complaint as a matter of law based upon the doctrine of primary assumption of risk is comрelled by this Court’s precedent (see e.g. Casey v Garden City Park-New Hyde Park School Dist., 40 AD3d 901 [2007]; Manoly v City of New York, 29 AD3d 649 [2006]; Morlock v Town of N. Hempstead, 12 AD3d 652 [2004]; Gamble v Town of Hempstead, 281 AD2d 391 [2001]), I write separately to express my view that the application of the doctrine under these circumstances is neither mandated by Court of Appeals precedent nor consonant with the narrow reach properly afforded the doctrine, as recently clarified by that Court.
In August 2007 the plaintiff’s infant son, Carl Palladino, then 11 years old, was playing handball with two friends on courts open to the public at the Lindenhurst Senior High School. The property is owned and maintained by the defendant Lindenhurst Union Free School District. The infаnt was playing on the middle court, where, flush with the wall against which the handball was thrown, there were ventilation grates built into the top of a raised cement block. The grates allowed for airflow from the exterior to the interior of the school building. The ventilation grates were ordinarily secured with bars because vandals had been known to lift the grates and enter the crawl space below. However, the security bar on the subject grates had been removed, and one of the grates was improperly placed, such that it was lying partially on top of another properly placed grate, lеaving a three-to-six-inch uncovered space between the edge of the cement block and the edge of the improperly placed grate. In the course of play, the infant stepped onto the improperly placed grate, causing the grate to cave in and the infant’s lеg to fall through the grate. The grate cut into the infant’s leg, down to the bone, allegedly causing a wound seven inches long, which required 46 sutures. The infant had played handball on the subject courts more than five times before the day of his accident, and had noticed the presence of the ventilation grates. Two or more days before the accident, the infant had noticed the space created by the improperly placed grate. On the day of the accident, he warned his friends about the space, and told them to “be careful.” Based upon this incident, the plaintiff commenced this aсtion to recover damages, inter alia, for personal injuries, and the defendant moved for summary judgment on the ground, among others, that the action was barred by the doctrine of primary assumption of risk.
The absolute defense of assumption of risk was abolished by the enactment of
The Court of Appeals has recently acknowledged, however, that this consent-based theory is a “highly artificial construct,” which has led to “a renaissance of contributory negligence replete with all its common-law potency” (Trupia, 14 NY3d at 395). The Court has, therefore, instructed that application of the doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation” (id. at 395). While the Court was concerned in Trupia with a different aspect of the doctrine, namely, the types of activitiеs falling within its ambit, the Court’s recognition of the tension between primary assumption of risk and the law of comparative causation prescribes prudent application of the doctrine generally.
With these new admonitions in mind, I turn to the case currently before this Court, which requires us to consider the prеcise risks to which the infant consented by participating in what the plaintiff here does not dispute was an athletic activity within the purview of the doctrine. “[B]y 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 [1997]; see Brown v City of New York, 69 AD3d 893 [2010]; Cotty v Town of Southampton, 64 AD3d at 253; Morlock v Town of N. Hempstead, 12 AD3d 652 [2004]). This includes risks related to the construction of the playing surface or space (see Ziegelmeyer v United States Olympic Comm., 7 NY3d 893 [2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Maddox v City of New York, 66 NY2d 270, 277 [1985]; Cotty v Town of Southampton, 64 AD3d at 254). While a premises owner owes a duty to exercise due care to “makе the conditions of the playing surface ‘as safe as they appear to be,’” if “‘the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty’” (Morgan, 90 NY2d at 484, quoting Turcotte v Fell, 68 NY2d at 439; see Bendig v Bethpage Union Free School Dist., 74 AD3d 1263, 1264 [2010]; Brown v City of New York, 69 AD3d 893 [2010]).
The Court of Appeals, however, has reсognized that “for purposes of determining the extent of the threshold duty of care, knowledge plays a role but inherency is the sine qua non” (Morgan, 90 NY2d at 484). In Morgan, the plaintiff was injured when his bobsled ran through an opening in the wall of the exit chute of the bobsled run, which was designed to facilitate the rapid removal of sleds during comрetition (id. at 479-481). The Court held that the defendant did not owe the plaintiff a duty of care because the plaintiff had assumed a “sufficiently inherent” risk (id. at 486).
In Sykes v County of Erie (94 NY2d at 913), where the plaintiff injured his knee when he stepped into a “recessed drain” while playing basketball on an outdoor court, the Court held that “the risks of playing upon an irrеgular surface are inherent in outdoor basketball activities.” Because this condition of the court was “open and obvious,” the Court concluded, the plaintiff assumed the inherent risk (id. at 913). Similarly, the risk of colliding with a pole supporting a basketball backboard, which was openly and obviously proximate to the court on which the plaintiff was playing, was “inherent in playing on that court” (Trevett v City of Little Falls, 6 NY3d 884, 885 [2006]). The doctrine was also held to be applicable to a case where the plaintiff, an Olympic speedskater, who was aware of the exact manner in which safety pads had been set up on the boards surrounding the rink, fell in such a way that her feet lifted the pads, causing her hip to directly strike the boards (see Ziegelmeyer v United States Olympic Comm., 7 NY3d at 894; see also Maddox, 66 NY2d at 274-275 [the plaintiff, a professional baseball player, assumed the risk related to wet and muddy condition of baseball field]; Scaduto v State of New York, 86 AD2d 682 [1982], affd for reasons stated below 56 NY2d 762 [1982] [the plaintiff softball player assumed the risk arising from the presence of a
In contrast, in Siegel v City of New York, a companion case to Morgan, in which the plaintiff snagged his foot in a ripped net dividing indoor tennis courts, the doctrine of primary assumption of risk was not applicable as a matter of law (see Morgan, 90 NY2d at 489). While the Court concluded that nets separating indoor tennis courts were “inherently part of the playing” at such sport facilities, “a torn or allegedly damaged or dangerous net—or other safety feature—is by its nature not automatically an inherent risk of a sport as a matter of law for summary judgment purposes” (id. at 488). The Court continued: “[B]ecause a torn net is not an ‘inherent’ part of the game of tennis in and of itself, [the plaintiff] should not be deemed legally to have assumed the risk of injuries caused by his tripping over it. Our precedents do not go so far as to exculpate sporting facility owners of this ordinary type of alleged negligence” (id. at 488-489). Accordingly, as “a distinctive, separatе duty continue[d] to be operative,” the defendant was not entitled to summary judgment (id. at 479). Significantly, the plaintiff’s deposition testimony in that case “showed that he had known for over two years that the side divider net was ripped” (id. at 482).
Thus, the Court of Appeals has applied the doctrine of primary assumption of risk to irrеgular surfaces or features in playing spaces that existed as they were designed. However, the Court refused, in Siegel, to apply the doctrine as a matter of law, where an inherent feature of a playing surface or space was itself defective, even though the plaintiff was aware of thе defect. The automatic negation of a landowner’s duty in such circumstances would give landowners license to allow properties, upon which sporting and recreational activities are held, to fall into disrepair. Indeed, in Sykes, the Court observed: “Although the doctrine of assumption of risk does nоt exculpate a landowner from liability for ordinary negligence in maintaining a [sic] premises, there is no evidence that the drain was defective or improperly maintained” (Sykes, 94 NY2d at 913). Similarly, the Court noted in Morgan that the plaintiff’s accident was “not the result of any demonstrable defect in the design of the bobsled course itself” (Morgan, 90 NY2d at 486). In Ziegelmeyer, the Appellate Division, Third Department, likewise noted that the record did not establish that the safety pads surrounding the rink “were either damaged or defective,” and it was demonstrated that “falling speedskaters often strike the pads in such a fashion as to cause the pads to move out of position on impact” (Ziegelmeyer v United States Olympic Cоmm., 28 AD3d 1019, 1020 [2006], affd 7 NY3d 893 [2006]).
Here, even if the risk of injury arising from the presence of ventilation grates on the handball court were “inherent in playing on that court” (Trevett v City of Little Falls, 6 NY3d at 885), the grates were not in their proper condition, and may have unreаsonably increased the risk of injury. The defective grate
Accordingly, while the result reached in the present case is consistent with this Court’s precedent, it is my view that the expansive interpretation adopted by this Court of the risks to which an individual mаy properly be deemed to consent is not mandated by Court of Appeals’ precedent, and, is otherwise unwarranted. This is particularly so in light of the Court of Appeals’ recent acknowledgment of the potential for the broad use of the doctrine of primary assumption of risk to erode the legislatively created law of comparative causation. Thus, while I concur in the result reached herein, I do so only under constraint of this Court’s precedent.