ASSUMPTION OF THE RISK TOSSES CASE OF TENNIS PLAYER WHO FALLS ON TORN NET
From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident injury lawyer)
Case: Krebs v. Town of Wallkill
Date: May 3, 2011
Supreme Court, Appellate Division, Second Department, New York.
Holding: Defendant is granted summary judgment, throwing out this case on paper.
Comment: Another assumption of the risk case (will they never learn?) I have written several times about assumption of the risk. See Related Posts, below. The Court describes assumption of the risk as follows:
"The doctrine of primary assumption of risk provides that 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'."
On September 22, 2008, the accident plaintiff, a regular tennis player, was playing doubles at the time of his accident, on a tennis court located in Circleville Town Park, which is owned by the defendant, Town of Wallkill.
The accident plaintiff had played this court many times before. He knew that the net in the middle of the tennis court had a tear or rip at the bottom. While warming up for his tennis game,
the accident victim reached over the net with his racquet to push a ball on the other side of the net to a player on that side. As he moved away from the center net, his left heel caught in the lower band of the center net, which was detached from the netting itself, and he tripped, allegedly injuring his left wrist.
In its decision, the Court restates the assumption of the risk doctrine and notes, "If the risks are ... 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"
The defense argued that the accident victim assumed the risk of his injury. The Court holds that the plaintiff can't recover as long as he was aware of the potential for injury of the mechanism from which the injury results. (Comment: This really doesn't make much sense.)
The Court was really persuaded by the injured plaintiff's "awareness" of the condition of the net - which doesn't seem like it should throw this plaintiff out of court, but does.
The Court then endorses the defense argument, making another finding which doesn't make sense: "In opposition, the plaintiff failed to raise a triable issue of fact. The allegedly dangerous condition in this case was not a 'faulty safety feature.' Rather, the center net constituted a feature which was 'directly used in playing outdoor tennis'."
Comment: Generally, an accident or injury caused by a damaged piece of sporting equipment will get an accident victim around the "assumption of the risk" doctrine and keep a case from being thrown out of court. This accident victim really lost here because the defect wasn't hidden to him; which the Court never says.
RELATED POSTS:
BASEBALL GAME SPECTATOR ASSUMES RISK & CAN'T SUE FOR ACCIDENT (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 20, 2011)
ROLLERBLADER DID NOT ASSUME RISK OF SIDEWALK ACCIDENT (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on April 13, 2011)
VICTIMS OF ACCIDENTS AND INJURIES WHILE PLAYING SPORTS OFTEN CAN'T SUE BECAUSE OF LEGAL PRINCIPLE KNOWN AS ASSUMPTION OF THE RISK (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on December 25, 2010)
BICYCLE HELMETS PROTECT CHILDREN'S BRAINS IN CASE OF AN ACCIDENT (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on February 28, 2011)
DRIVER WHO OPEN DOOR AND FORCED BICYCLIST UNDER BUS CHARGED WITH FELONY "LEAVING THE SCENE" (Posted by Brooklyn accident injury lawyer Gary E. Rosenberg on January 31, 2011)
