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.