Wednesday, February 24, 2016

A schoolyard injury, premises liability, and assumption of the risk.

Practice point: The Appellate Division affirmed the denial of plaintiff's summary judgment motion as to liability in this action where infant plaintiff allegedly was injured while playing basketball at recess when his head struck the pole supporting the backboard and he fell to the ground.  Defendant established its prima facie entitlement to judgment as a matter of law dismissing the premises liability cause of action by demonstrating that the pole was open and apparent; that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard; that defendant did nothing to conceal or unreasonably increase the risk; and that plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions.

Student note:  The doctrine of primary assumption of risk applies where a consenting participant in a sporting activity is aware of the risks inherent in the activity, has an appreciation of the nature of the risks, and voluntarily assumes the risks. The doctrine is not a bar to liability if the risk is unassumed, concealed, or unreasonably increased.

Case: Altagracia v. Harrison Cent. Sch. Dist.,  NY Slip Op 01141 (2d Dept. 2016)

Here is the decision.

Tomorrow's issue:  Summary judgment on a Labor Law § 240(1) cause of action.