In Philius v. City of New York, plaintiff alleged he was injured while playing basketball on an outdoor basketball court owned by the defendants New York City Housing Authority and the City of New York. Plaintiff tripped on a crack in the surface of the court. NYCHA moved for summary judgment arguing, among other points, that the plaintiff’s action was barred by the doctrine of primary assumption of risk. The Supreme Court denied NYCHA’s motion, and NYCHA appealed.

The Appellate Division, Second Department found that pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘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.’ Although cracks on the court are not necessarily commonly appreciated risks, in support of its motion, NYCHA submitted, among other things, a transcript of the plaintiff’s testimony, as well as photographs of the subject court. The plaintiff, who was 19 years old at the time of the accident and an experienced basketball player, testified that he “grew [up] playing on [the subject] court,” and that he was aware of the presence of cracks in the surface of the court prior to his accident. The plaintiff also indicated that he was previously aware of the particular crack over which he tripped.

The Court held NYCHA demonstrated that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from concealed, or unreasonably increased risks, and that the plaintiff assumed the risk of injury by voluntarily participating in a basketball game on the outdoor court despite his knowledge that doing so could bring him into contact with an open and obvious crack in the playing surface.

In opposition, the plaintiff argued that he did not assume the risk of having his foot stuck in a crack when playing basketball.” The plaintiff submitted the affidavit of a licensed professional engineer, who opined that the cracked pavement constituted a longstanding defective condition in a very advanced state of disrepair. In reply, NYCHA argued that the prominent and visible nature of the cracked surface of the basketball court only supports its contention that the plaintiff voluntarily assumed any risk of injury arising from the game. The Second Department found NYCHA’s argument persuasive and overturned the lower court’s decision and granted summary judgment for NYCHA.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.