In Bunn v. Town of N. Hempstead (decided August 28, 2013), the Second Department held that the defendant failed to establish its entitlement to summary judgment on the issue of assumption of risk.
Plaintiff was injured while playing basketball after tripping on a crack in the court and catching his foot on a metal cap, which was part of a defunct sprinkler system.
The law provides:
By 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. … Participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent, or reasonably foreseeable consequences of participation, but not to unassumed, concealed, or unreasonably increased risks.
Here, defendant Town “failed to satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law by eliminating all triable issues of fact as to the applicability of the doctrine of primary assumption of the risk.”
The evidence submitted in support of its motion, including the plaintiff’s deposition testimony and photographs of the basketball court and metal cap, demonstrated that the metal cap was small, was raised only slightly above ground level, was painted the same color as the basketball court, and was difficult to see from more than a few feet away. Under these circumstances, a triable issue of fact exists as to whether the condition was concealed, and it cannot be said as a matter of law that the plaintiff assumed the risks associated with it.
Therefore, the trial court should not have denied defendant’s motion for summary judgment dismissing the complaint.