In the recent case of Bryant v. Town of Brookhaven, No. 12761/10, 2016 WL 230089 (N.Y. App. Div. 2d Dept. Jan. 20, 2016) provides an overview of the personal injury law concept of “assumption of risk”.
Here, the injured plaintiff was playing golf when he slipped and fell on a wet wooden railroad tie that lined a footpath on the golf course.
The court summarized the law as follows:
Under the doctrine of primary assumption of the risk, 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. A participant consents to the risk of those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation. Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played. [A]wareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff. Moreover, [i]t is not necessary to the application of assumption of risk that the injured plaintiff [had] foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results. While participants are not deemed to have assumed the risks of concealed or unreasonably increased risks, if the risks are fully comprehended or obvious and the plaintiff has consented to them, the defendant has satisfied its only duty of care which is to make the conditions as safe as they appear to be. (Citations omitted.)
Applying the law, the court held that defendants were entitled to summary judgment, reasoning that they “demonstrated that slipping on the wet railroad tie was a reasonably foreseeable consequence of playing golf while the course was still wet from the morning dew” and that “[t]herefore, the injured plaintiff, an experienced golfer who had played on the subject golf course on numerous prior occasions assumed the risk of injury.” (Citations omitted.)
Plaintiff’s argument that “overgrown grass camouflaged or hid the slippery condition of the railroad tie from view” did not save the day, in light of his testimony that the footpath was “partially obstructed” by the grass and that the grass was “almost overgrown with the railroad ties” and that as he was approaching the footpath, he was looking “[a]head,” was not walking with his head down, but walking “straight ahead,” and saw the footpath in front of him.