Soccer Player Denied Recovery in “out of bounds” Injury (NY)

Now that the World Cup is over, the in the U.S. focus shifts from football back to American football.  But soccer / football still finds its way into the news every now and again.

In O’Toole v Long Island Jr. Soccer, plaintiff alleged he was injured while retrieving a soccer ball that went out of bounds as his cleat got caught on a drainage grate near the field where he was playing. The Supreme Court granted the defendant’s motion for summary judgment under the theory of assumption of risk. Plaintiff 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 the grate was not part of the field of play,  the plaintiff admitted in his deposition testimony that in order to gain access to the field, he had to walk on the grate, and so, was aware of its presence.

The Court held defendant 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 soccer game despite his knowledge that doing so could bring him into contact with an open and obvious grate near the field of play. The Appellate Division also determined the grate was NOT concealed or defective in any manner.

In opposition to the defendant’s motion, the plaintiffs merely offered speculative expert opinions and failed to raise a triable issue of fact. The Second Department agreed with the lower Court’s decision and found defendant’s argument persuasive and affirmed summary judgment. When you call the sport soccer or football, well, let’s say the plaintiff and counsel called it a day after the Second Department’s ruling.

Thanks to Paul Vitale for his contribution to this post.  Please email Vincent Terrasi with any questions.

3rd Dept. Refuses to Apply Primary Assumption of Risk Doctrine to Trampoline Case

In DeMarco v. DeMarco, the Third Department recently declined to apply the primary assumption of risk doctrine to jumping on a trampoline.

The case arose when the 48-year-old plaintiff was visiting the home of the defendants – her brother and sister in law – and plaintiff’s 9-year-old nephew asked her to join him on defendant’s trampoline. The plaintiff had never been on a trampoline before, but she agreed. After initially jumping in unison, the plaintiff’s nephew began “double jumping” the plaintiff, meaning he intentionally jumped out of unison with the plaintiff. This threw the plaintiff off balance, causing her land on the trampoline hard, fracturing several bones in her left foot. Plaintiff then commenced this action seeking damages from the defendants.

At trial, defendants sought a jury charge regarding primary assumption of risk. This request was denied and the court instead charged the jury regarding implied assumption of risk. The jury found in favor of the plaintiff and awarded her $220,000 for past pain and suffering and $580,000 for future pain and suffering.

On appeal, the Third Department noted that under CPLR 1411, any culpable conduct by plaintiff, including “assumption of the risk,” does not bar plaintiff’s recovery in New York. However, the Court of Appeals has held that CPLR 1411 does not prevent the primary assumption of risk doctrine from being used as a defense to tort recovery in cases involving certain sports or recreational activities.

But the Court of Appeals has also held that the assumption of risk doctrine “must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation.” See Trupia ex rel. Trupia v. Lake George Cent. Sch. Dist., 927 N.E.2d 547 (2010). In practice, this means that the doctrine is limited to situations where it is considered appropriate to absolve a parties’ duty of care, such as certain designated sporting and recreational events. See id.

Defendants acknowledged that jumping on a trampoline did not fit on the narrow list of the activities that courts had previously applied the primary assumption of risk doctrine. However, they argued that applying the doctrine to the case at bar would be in keeping with the doctrine’s underlying purpose – to facilitate free and vigorous participation in athletics. The Court was not persuaded, and held that jumping on a trampoline was not the type of socially valuable activity that the doctrine seeks to encourage.

Interestingly, although the defendants also raised several issues regarding the substance of the implied assumption of risk jury charge, they failed to make those specific objections at trial. Rather, they only objected to the court’s decision to charge the jury with implied assumption of risk, instead of primary assumption of risk. Because of this, the Third Department held that these issues were not preserved for appellate review. Given the incredibly narrow scope of cases to which courts will apply the primary assumption of risk doctrine, it seems defendants would have been better served by focusing their fight on the substance of the jury charge that was actually given.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Boxing Instructor Should Have Been Ready to Tumble

Owners and managers of sporting facilities have a duty to maintain their premises in a reasonably safe condition. But that does not mean that those using the facilities can ignore the conditions they have seen before.

In Baccari v. KCOR, Inc., an experienced boxing instructor stepped into the ring to train his girlfriend during his spare time. During one of their training sessions, the instructor injured himself after stepping into a gap in the padding that was located under the canvas. The defendant moved for summary judgment, arguing that the doctrine of primary assumption of risk barred recovery. The Queens County Supreme Court disagreed, and denied the motion.

However, the Second Department reversed, holding that the doctrine of primary assumption risk “includes risks associated with any open and obvious conditions of the playing field, including risks arising from ‘less than optimal conditions.’” Key to the court’s ruling was the fact that the boxing instructor was familiar with the very ring in which he was injured, and even saw one of his students step into the gap on a prior occasion.

Baccari is not the only recent New York decision to absolve a defendant who maintained sporting facilities in less than ideal conditions. What is becoming increasingly clear in New York is that when sporting participants are aware that a facility is not as up to par as it should be, they should be prepared to use the facility at their own risk.

Of course, property owners and managers should not use Baccari as a license to neglect their facilities. The recent cases denying recovery for those injured in poorly maintained facilities have done so in situations where the plaintiffs have used the facilities before and were aware of those conditions. If the plaintiff had been someone other than an instructor familiar with that particular boxing ring, it is unlikely that the court would have knocked the case out.

Thanks for Mike Guavin for this post. If you have any questions, please email Paul at pclark@wcmlaw.com