In the fall, people's thoughts turn to—sports. Whether as a spectator or a participant, safety is important. It is essential to know if the playing field has more holes than the Mets' starting line up and whether an injury arising out of contact with such a defect is actionable.

Liability in personal injury actions in New York is generally measured by assessing the comparative culpability of plaintiffs and defendants pursuant to CPLR §1411. This provision eliminated contributory negligence and assumption of the risk as absolute bars to recovery in most negligence cases, but not necessarily those arising out of sporting events. Although liability in personal injury actions is generally governed by principles of comparative negligence, the doctrine of primary assumption of the risk has remained in determining liability for many injuries sustained during sporting activities. The Court of Appeals has held that primary assumption of the risk is a measure of a duty of care and not an absolute defense. However, it may sometimes completely bar recovery by relieving the defendant of any duty of care to a voluntary participant or spectator in a sporting or recreational activity. The stated purpose is ostensibly to promote a policy of facilitating free and vigorous participation in athletic activities based upon a presumption that certain sporting and recreational activities have been found to be so dangerous that there may be no duty of care.

Under the doctrine of primary assumption of the risk, participants are deemed to have consented to those commonly appreciated risks which are inherent in and arise out of the nature of the sporting activity. They are assumed to have accepted any risks that are known, apparent, or a reasonably foreseeable consequence of participation. They should not, however, be compelled to assume concealed or unreasonably increased risks. Nor do they assume risks resulting from the defendant's reckless or intentional conduct.

The case law which has evolved with respect to the condition of the playing field has spawned sharply divergent and highly inconsistent opinions as to when a defect in the field is a risk inherent in the sport within the purview of the doctrine of assumption of the risk and when the defect is attributable to landowner negligence, subject to comparative negligence principles. There is a conflict between the expressed constraints of the Court of Appeals and a body of appellate decisions. The Court of Appeals has recognized that a person who chooses to participate in an athletic 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.” Morgan v. State, 90 N.Y.2d 471 (1997). These risks may involve “less than optimal conditions,” so long as those conditions are, in fact, inherent to and unavoidable from the nature of the sport. This may include risks related to the construction of the playing field. The key word remains “inherent.” The court has recognized that although plaintiff's knowledge plays a role, “inherency is the sine qua non.” Morgan, 90 N.Y.2d at 484. A participant in an athletic activity should not assume “additional or heightened risks beyond those inherent in a sport,” including defects in the playing surface that come about through improper maintenance.

However, many appellate court decisions have focused less on whether the particular condition of the playing surface which contributed to the accident was an inherent risk of the sport and more on the extent to which the plaintiff knew about the condition and elected to play on the surface anyway.

The Court of Appeals has specifically addressed the issue of when a physical defect in the playing field may be considered sufficiently “inherent” in the sport so as to trigger the doctrine. In Siegel v. City of New York, 90 N.Y.2d 471 (1997), plaintiff was playing tennis at defendant's facility when he snagged his foot in a torn net dividing the courts. Although plaintiff had known for over two years that the net was ripped, he nonetheless elected to use the court. However, the court held that the assumption of the risk doctrine was inapplicable because a ripped net was not an inherent risk of playing tennis. It reasoned:

It cannot reasonably be disputed that nets separating indoor tennis courts, such as the one at issue here, are inherently part of the playing and participation of the sport at such facilities, In such circumstances, they prevent interference from bouncing balls and trafficking players on adjacent courts. But a torn or allegedly damaged or dangerous net—or other safety feature—is by its nature not automatically an inherent risk of a sport as a matter of law … Rather, it may qualify as and constitute an allegedly negligent condition occurring in the ordinary course of any property's maintenance and may implicate typical comparative negligence principles.

Subsequently, in dicta in Sykes v. County of Erie, 94 N.Y.2d 912 (2000), the Court of Appeals stated “the doctrine of assumption of risk does not exculpate a landowner from liability for ordinary negligence in maintaining a premises.”

There is a significant body of conflicting case law, as to whether defects in the condition of a playing field should bar recovery under primary assumption of the risk or be analyzed under the principles of comparative negligence. This has led to disparate and sometimes unfair results, often under similar fact patterns. Where a defect in a sport field appears to be open and obvious and plaintiff has admitted to knowledge of its existence, certain courts have not hesitated to apply the doctrine to bar recovery, even though the touchstone of the inquiry should be whether a particular hazard is inherent to the sport or activity itself. In other decisions, the courts have found that the defective condition is negligent maintenance subject to comparative negligence principles. It is for the Court of Appeals to clarify the significance of Siegel in the specific context of a landowner's duty of care with respect to the maintenance of a playing field. A defendant's duty of care should not be completely disregarded because the defects are on a playing field rather than a sidewalk or other non-sports related area.

In this article we examine decisions applying the two often conflicting principles. For example, in Wyzykowski v. State, 162 A.D.3d 1705 (4th Dept. 2018), the court held that although the risk of falling while ice skating is inherent in the nature of the sport generally, skating on a negligently maintained ice surface is not a risk that is inherent in the sport. Thus, even though claimant was aware of the poor ice conditions, her decision to continue to skate related only to the issue of her comparative fault, if any. So, too, in Furnari v. City of NY, 89 A.D.3d 605 (1st Dept. 2011), plaintiff fell while throwing a ball on an uneven softball playing surface patched with fresh tar. The court found that the accident was caused by an unevenness in the playing surface, which was not inherent in a sport played on an asphalt surface which is presumably flat. As such, there were issues of fact for a jury.

In Simmons v. Saugerties Cent. School Dist., 82 A.D.3d 1407 (3d Dept. 2011), plaintiff was injured when he stepped into a large hole while playing touch football. The court held that neither the open and obvious nature of the large hole nor plaintiff's allegedly long-standing knowledge of it barred inquiry into whether the allegedly dangerous condition resulted from defendant's negligent maintenance of its property over and above the dangers inherent in the sport. In Ryder v. Town of Lancaster, 289 A.D.2d 995 (4th Dept. 2001), the court found that where plaintiff stepped in a six- to eight-inch-deep hole while playing volleyball on a grass court, the doctrine of assumption of risk would not exculpate the landowner from liability for ordinary negligence in maintaining its premises.

However, there are a number of cases to the contrary. For example, in Williams v. New York City Hous. Auth., 107 A.D.3d 530 (1st Dept. 2013), plaintiff, an experienced player, was injured while playing basketball on an outdoor court when he tripped and fell over a large and highly visible crack. He had previously played there and was aware that the court had cracks. The court held that the assumption of risk doctrine was applicable because plaintiff was aware of the obvious risk of playing on the cracked court. In Felton v. City of New York,106 A.D.3d 488 (1st Dept. 2013), the court similarly held that the doctrine of assumption of risk warranted dismissal of the complaint where the court was cracked, repaired and uneven. So too, in Green v. City of New York, 263 A.D.2d 385 (1st Dept. 1999), the court determined that since plaintiff voluntarily chose to play basketball on a court surface whose faulty condition was obvious, his injury was not attributable to a violation of defendants' duty to exercise ordinary, reasonable care.

The application of primary assumption of the risk to injuries sustained on poorly maintained playing fields has, on occasion, prompted reluctant concurring opinions where appellate court justices felt constrained to apply the doctrine based upon departmental precedent, despite the obvious negligence of the landowner in maintaining the field. In Palladino v. Lindenhurst Union Free School Dist., 84 A.D.3d 1194 (2d Dept. 2011), the infant plaintiff was playing handball when he stepped on an improperly placed grate. He was aware of the condition of the grate, having seen it on prior occasions as well as on the date of the accident. Without giving any consideration to the fact that the grate was not inherent in the game, the court held that the defendant demonstrated its prima facie entitlement to judgment as a matter of law. The infant had assumed the risk of injury by voluntarily participating in the game, despite his knowledge that he might come into contact with the open, obvious and improperly placed metal grate.

There was a reluctant concurring opinion by Judge Peter Skelos. Although he felt constrained to follow Second Department precedent to dismiss based upon the doctrine of primary assumption of risk, he opined that the application of the doctrine under these circumstances was neither mandated by Court of Appeals precedent nor consistent with the narrow reach afforded the doctrine, as clarified by that court in Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392 (2010). Justice Skelos opined:

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” … 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” … 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. (internal cites omitted)

He further opined that, while the Court of Appeals had applied the doctrine of primary assumption of risk to irregular surfaces or features in playing spaces that existed as they were designed, it had not applied the doctrine as a matter of law where an inherent feature of a playing surface or space was itself defective, even though the plaintiff was aware of the defect. He stated that “the automatic negation of a landowner's duty in such circumstances would give landowners license to allow properties, upon which sporting and recreational activities are held, to fall into disrepair.” He further opined that primary assumption of risk, as defined by the Court of Appeals, did not provide that “a voluntary participant in a sport or recreational activity consents to all defects in a playing field so long as the defects are either known to the plaintiff or open and obvious” He noted that while some known or open and obvious conditions of a playing surface or space may be inherent in a sport, not all such conditions can be considered inherent risks. He emphasized that the important element was that the condition be inherent in the sporting activity. He concluded by stating that he concurred based upon Second Department precedent but that his view was that this expansive interpretation was not mandated by Court of Appeals' precedent and its acknowledgment in Trupia of the potential for the broad use of the doctrine of primary assumption of risk “to erode the legislatively created law of comparative causation.”

Very recently, in Philius v. City of New York, 161A.D.3d 787 (2d Dept. 2018), Judge Francesca Connolly expressed similar reservations about the application of primary assumption of the risk in a concurrence, in which Justice Leonard Austin joined. In Philius, plaintiff was injured when he tripped on a crack on a basketball court. He admitted in deposition testimony that he was aware of these cracks prior to his accident. The court dismissed the complaint, finding 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. These inherent risks included those arising from the construction of the field, and any open and obvious conditions of the place where the sport is played.

Judge Connolly stated that she was compelled by Second Department precedent to concur, but opined that under Court of Appeals precedent, assumption of the risk was not applicable. She rejected the contention that plaintiff had assumed the risk just because the defects in the playing field were visible. She opined that whether a playing surface was in its designed condition, or whether it had fallen into disrepair, should be a crucial distinguishing factor in determining whether the doctrine of primary assumption of risk was applicable. The emphasis should be whether the risk is “inherent” in the sport, not plaintiff's knowledge of an alleged defect. She stated that “applying the doctrine of primary assumption of risk where a landowner has unreasonably allowed a sporting venue to fall into a state of disrepair is incompatible with the theoretical and pragmatic rationales behind the doctrine.”

It is clear that this is an area of law that should be further addressed and clarified by the Court of Appeals.