Did Player Assume Risk of Hole in Asphalt Surface?

New York City parks are regularly and foreseeably used by recreational players in various sports—who assume the concomitant risks of those activities. But do those participants assume the risk of a defect in the playing surface?

On August 9, 2015, Parand Maharaj allegedly was injured when he fell while playing cricket on the tennis courts at New York City’s Lincoln Terrace/Arthur S. Somers Park in Brooklyn. He alleged that he tripped over a two-to-four-inch deep hole that was concealed inside a long crack, which was approximately seven feet long and between three to eight inches wide, in the asphalt playing surface. Maharaj sued the City to recover damages for personal injuries. After discovery, the City’s moved for summary judgment dismissing the complaint on the ground that Maharaj assumed the risk of his injuries. The Supreme Court granted the motion. Maharaj appealed.

Under the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of the nature of the sport generally and flow from such participation. Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.

Assumption of risk is not an absolute defense but a measure of the defendant’s duty of care. That duty is to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, the participant has consented to them and defendant has performed its duty. This includes risks associated with the construction of the playing surface and any open and obvious condition on it, including less than optimal conditions. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results. However, participants are not deemed to have assumed risks that are concealed or unreasonably increased over and above the usual dangers that are inherent in the sport.

Here, the City’s submissions in support of their motion, which included Maharaj’s deposition testimony and photographs allegedly depicting the accident site, revealed that the crack in the surface of the tennis courts, which allegedly caused the accident, was clearly visible. In opposition, Maharaj failed to raise a triable issue of fact as to whether the open and obvious crack concealed the depth and extent of the alleged hole. Accordingly, the Supreme Court properly granted the City’s motion for summary judgment.