In E.B. v. Camp Achem, a 15 year old plaintiff was injured while at defendant’s summer camp during a game of touch football. Plaintiff allegedly ran into a metal bench that was on the field near the area the campers were playing football. The Supreme Court denied defendant’s motion for summary judgment and the defendant’s appealed.
The Appellate Division, Second Department overturned the lower court’s decision and granted summary judgment to the defendant because of the doctrine of primary assumption of risk: “If the risks are known 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.”
The defendants cited plaintiff’s deposition testimony where he said there was nothing marking the area where the benches were located as the end zone, but if the ball was caught in the vicinity of the bench, the campers would consider that a touchdown. Since the plaintiff, who had been playing football on this field for more than an hour when the accident occurred, was aware of that condition and voluntarily chose to play on the field, he assumed the risk of injury of colliding into one of the benches.
Furthermore, the court determined the bench was an open and obvious condition as it was clearly visible hazard. Plaintiff also testified that he flipped over one of the benches as he was running for a pass and that, prior to turning to catch the ball, he had run the full length of the field looking ahead toward the benches.
Due to the plaintiff voluntarily playing football and being aware of his surroundings for over an hour, the Second Department agreed that plaintiff assumed the risk persuasive and granted defendant’s motion for summary judgment.
Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information.