Palladino v. Lindenhurst Union Free Sch. Dist.

• Decision Date: 24 May 2011
• Citation: 924 N.Y.S.2d 474,2011 N.Y. Slip Op. 04439,267 Ed. Law Rep. 822,84 A.D.3d 1194
• Parties: Joan PALLADINO, etc., respondent,v.LINDENHURST UNION FREE SCHOOL DISTRICT, appellant.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1194

924 N.Y.S.2d 474

267 Ed. Law Rep. 822

2011 N.Y. Slip Op. 04439

Joan PALLADINO, etc., respondent,

v.LINDENHURST UNION FREE SCHOOL DISTRICT, appellant.

Supreme Court, Appellate Division, Second Department, New York.

May 24, 2011.

Donohue, McGahan, Catalano & Belitsis, Jericho, N.Y. (Jonathan Rexford Ames and Thomas C. Catalano, Jr., of counsel), for appellant.Jeffrey I. Baum & Associates, P.C., Garden City, N.Y., for respondent.PETER B. SKELOS, J.P., RUTH C. BALKIN, LEONARD B. AUSTIN and SANDRA L. SGROI, JJ.

[924 N.Y.S.2d 475 , 84 A.D.3d 1195]

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), entered April 16, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The plaintiff's infant son, Carl Palladino (hereinafter the infant), was playing handball on the defendant's premises when he allegedly stepped on an improperly placed grate, sustaining personal injuries. The infant was aware of the condition of the grate, having seen it prior to the incident on the date of the accident and on a prior date when he last played handball in the same area.

The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon ( see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 826 N.Y.S.2d 598, 860 N.E.2d 60; Sykes v. County of Erie, 94 N.Y.2d 912, 707 N.Y.S.2d 374, 728 N.E.2d 973; Maddox v. City of New York, 66 N.Y.2d 270, 496 N.Y.S.2d 726, 487 N.E.2d 553; Brown v. City of New York, 69 A.D.3d 893, 895 N.Y.S.2d 442; Manoly v. City of New York, 29 A.D.3d 649, 816 N.Y.S.2d 499; Morlock v. Town of N. Hempstead, 12 A.D.3d 652, 785 N.Y.S.2d 123). Where, as here, 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 ( see Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; Morales v. Coram Materials Corp., 64 A.D.3d 756, 758, 883 N.Y.S.2d 311; Joseph v. New York Racing Assn., 28 A.D.3d 105, 108, 809 N.Y.S.2d 526). The defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the infant assumed the risk of injury by voluntarily participating in the handball game despite his knowledge that doing so could bring him into contact with the open and obvious, improperly placed metal grate ( see Trevett v. City of Little Falls, 6 N.Y.3d 884, 816 N.Y.S.2d 738, 849 N.E.2d 961; Brown v. City of New York, 69 A.D.3d at 894, 895 N.Y.S.2d 442; Ribaudo v. La Salle Inst., 45 A.D.3d 556, 846 N.Y.S.2d 209). In opposition, the plaintiff failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

In light of our determination, we need not address the merits of the parties' remaining contentions.

SKELOS, J.P., concurs in the result, and votes to reverse the order and grant the defendant's motion for summary judgment dismissing the complaint, with the following memorandum.

While dismissal of the complaint as a matter of law based upon the doctrine of primary assumption of risk is compelled by this Court's precedent ( see e.g. Casey v. Garden City Park–New Hyde Park School Dist., 40 A.D.3d 901, 837 N.Y.S.2d 186; Manoly v. City of New York, 29 A.D.3d 649, 816 N.Y.S.2d 499; Morlock v. Town of N. Hempstead, 12 A.D.3d 652, 785 N.Y.S.2d 123; Gamble v. Town of Hempstead, 281 A.D.2d 391, 721 N.Y.S.2d 385), I write separately to express my view that the application of the doctrine under these circumstances is neither mandated by Court of Appeals precedent nor consonant with the narrow reach properly afforded the doctrine, as recently clarified by that Court.

In August 2007 the plaintiff's infant son, Carl Palladino, then 11 years old, was playing handball with two friends on courts open to the public at the Lindenhurst Senior High School. The property is owned and maintained by the defendant Lindenhurst Union Free School District. The infant was playing on the middle court, where, flush with the wall against which the handball was thrown, there were ventilation grates built into the top of a raised cement block. The grates allowed for airflow from the exterior to the interior of the school building. The ventilation grates were ordinarily secured with bars because vandals had been known to lift the grates and enter the crawl space below. However, the security bar on the subject grates had been removed, and one of the grates was improperly placed, such that it was lying partially on top of another properly placed grate, leaving a three-to-six-inch uncovered space between the edge of the cement block and the edge of the improperly placed grate. In the course of play, the infant stepped onto the improperly placed grate, causing the grate to cave in and the infant's leg to fall through the grate. The grate cut into the infant's leg, down to the bone, allegedly causing a wound seven inches long, which required 46 sutures. The infant had played handball on the subject courts more than five times before the day of his accident, and had noticed the presence of the ventilation grates. Two or more days before the accident, the infant had noticed the space created by the improperly placed grate. On the day of the accident, he warned his friends about the space, and told them to “be careful.” Based upon this incident, the plaintiff commenced this action to recover damages, inter alia, for personal injuries, and the defendant moved for summary judgment on the ground, among others, that the action was barred by the doctrine of primary assumption of risk.

The absolute defense of assumption of risk was abolished by the enactment of CPLR 1411, which provides that, “[i]n any action to recover damages for personal injury, ... assumption of risk[ ] shall not bar recovery.” Assumption of risk has nonetheless “survived as a bar to recovery” in cases involving sports and recreational activities, under the rationale that “by freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” ( Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395, 901 N.Y.S.2d 127, 927 N.E.2d 547; see Turcotte v. Fell, 68 N.Y.2d 432, 438–439, 510 N.Y.S.2d 49, 502 N.E.2d 964; Cotty v. Town of Southampton, 64 A.D.3d 251, 254, 880 N.Y.S.2d 656). The Court of Appeals has recently acknowledged, however, that this consent-based theory is a “highly artificial construct,” which has led to “a renaissance of contributory negligence replete with all its common-law potency” ( Trupia, 14 N.Y.3d at 395, 901 N.Y.S.2d 127, 927 N.E.2d 547). The Court has, therefore, instructed that application of the doctrine “ must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation” ( Trupia, 14 N.Y.3d at 395, 901 N.Y.S.2d 127, 927 N.E.2d 547). While the Court was concerned in Trupia with a different aspect of the doctrine, namely, the types of activities falling within its ambit, the Court's recognition of the tension between primary assumption of risk and the law of comparative causation prescribes prudent application of the doctrine generally.

With these new admonitions in mind, I turn to the case currently before this Court, which requires us to consider the precise risks to which the infant consented by participating in what the plaintiff here does not dispute was an athletic activity within the purview of the doctrine. “[B]y engaging in a sport or recreational activity, a participant 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” ( Morgan v. State of New York, 90 N.Y.2d 471, 484, 662 N.Y.S.2d 421, 685 N.E.2d 202; see Brown v. City of New York, 69 A.D.3d 893, 895 N.Y.S.2d 442; Cotty v. Town of Southampton, 64 A.D.3d at 253, 880 N.Y.S.2d 656; Morlock v. Town of N. Hempstead, 12 A.D.3d 652, 785 N.Y.S.2d 123). This includes risks related to the construction of the playing surface or space ( see Ziegelmeyer v. United States Olympic Comm., 7 N.Y.3d 893, 826 N.Y.S.2d 598, 860 N.E.2d 60; Sykes v. County of Erie, 94 N.Y.2d 912, 707 N.Y.S.2d 374, 728 N.E.2d 973; Maddox v. City of New York, 66 N.Y.2d 270, 277, 496 N.Y.S.2d 726, 487 N.E.2d 553; Cotty v. Town of Southampton, 64 A.D.3d at 254, 880 N.Y.S.2d 656). While a premises owner owes a duty to exercise due care to make the conditions of the playing surface “ ‘as safe as they appear to be,’ ” if “ ‘the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty’ ” ( Morgan, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202, quoting Turcotte v. Fell, 68 N.Y.2d at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964; see Bendig v. Bethpage Union Free School Dist., 74 A.D.3d 1263, 1264, 904 N.Y.S.2d 731; Brown v. City of New York, 69 A.D.3d 893, 893, 895 N.Y.S.2d 442).

Under these principles, this Court has generally applied the doctrine of primary assumption of risk where plaintiffs knew about the particular condition of the playing surface which caused the accident or contributed to the injuries, and elected to play on that surface anyway ( see e.g. Casey v. Garden City Park–New Hyde Park Sch. Dist., 40 A.D.3d 901, 837 N.Y.S.2d 186 [hole in the surface of a basketball court 1 1/2 feet wide and 2 inches deep]; Manoly v. City of New York, 29 A.D.3d 649, 816 N.Y.S.2d 499 [raised manhole cover on soccer field, and surrounding fence that was in disrepair]; Morlock v. Town of N. Hempstead, 12 A.D.3d 652, 785 N.Y.S.2d...