Cevetillo v. Town of Mount Pleasant

• Decision Date: 21 June 1999
• Citation: 692 N.Y.S.2d 426,262 A.D.2d 517
• Court: New York Supreme Court — Appellate Division
• Parties: CARMELA CEVETILLO, Appellant,<BR>v.<BR>TOWN OF MOUNT PLEASANT, Defendant and Third-Party Plaintiff-Respondent, and HANK KIMMEL, Respondent.<BR>UNION FREE SCHOOL DISTRICT No. 5, MOUNT PLEASANT, NORTH CASTLE AND GREENBURGH, Third-Party Defendant-Respondent.

262 A.D.2d 517

692 N.Y.S.2d 426

CARMELA CEVETILLO, Appellant,

v.TOWN OF MOUNT PLEASANT, Defendant and Third-Party Plaintiff-Respondent, and HANK KIMMEL, Respondent.UNION FREE SCHOOL DISTRICT No. 5, MOUNT PLEASANT, NORTH CASTLE AND GREENBURGH, Third-Party Defendant-Respondent.

Decided June 21, 1999.

S. Miller, J. P., Joy, H. Miller and Feuerstein, JJ., concur.

Ordered that the appeal from so much of the order as granted the motion of the defendantTown of Mount Pleasant is dismissed, as that portion of the order was superseded by the interlocutory judgment entered thereon; and it is further,

Ordered that the interlocutory judgment is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The plaintiff was injured during an outdoor tennis lesson given by the defendantHank Kimmel on behalf of the defendant third-partyplaintiffTown of Mount Pleasant(hereinafter Mount Pleasant) on a tennis court owned by the third-party defendantUnion Free School DistrictNo. 5, Mount Pleasant, North Castle and Greenburgh.The Supreme Court granted the separate motions for summary judgment dismissing the complaint on the theory that the plaintiff assumed the risk of injury when she voluntarily played on an obviously cracked tennis court.

"As a general rule, participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation"(Turcotte v Fell,68 NY2d 432, 439).Part of the risk inherent in participating in a sport includes open and obvious defects in the construction of the playing field (see, Walner v City of New York,243 AD2d 629;Touti v City of New York,233 AD2d 496).

The only exception to the rule is that faulty safety features of the playing field, not directly used in playing the game, are "not automatically an inherent risk of [the] sport as a matter of law" for purposes...