Cannavale v. City of New York

Appellate Division of the Supreme Court of New York

Cannavale v. City of New York

257 A.D.2d 462, 683 N.Y.S.2d 528, 1999 N.Y. App. Div. LEXIS 452

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 19, 1999

StatusPublished

Cited by5 cases

This text of 257 A.D.2d 462 (Cannavale v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cannavale v. City of New York, 257 A.D.2d 462, 683 N.Y.S.2d 528, 1999 N.Y. App. Div. LEXIS 452 (N.Y. Ct. App. 1999).

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Opinion

—Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 17, 1997, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No triable issues of fact are raised by plaintiffs allegations that while watching a semi-professional football game from the sidelines near the middle of the field, he perceived some children also on the sidelines in danger of being trampled by onrushing players, and, attempting to push the children out of the way, was himself trampled by the players. Assuming, without deciding, that defendant City, the proprietor of this field located on the grounds of a public high school, breached a duty to spectators to provide seating or security personnel to keep people from getting too close to the play, such duty was negated, or such breach cannot be characterized as a direct cause of plaintiffs injuries, because plaintiff assumed the risk of being trampled. As the motion court pointed out, relying on plaintiffs General Municipal Law § 50-h testimony, “spectators were standing ‘all over the place’ indicating that there was available space to stand elsewhere other than where plaintiff chose to stand”, i.e., further back from the play (see, Gilchrist v City of Troy, 67 NY2d 1034; Cadieux v Board of Educ., 25 AD2d 579; see also, Akins v Glens Falls City School Dist., 53 NY2d 325, 329). The dangers of watching a football game from the sidelines of a field with no protective barriers are inherent in the sport and “ ‘perfectly obvious’ ”, and no dangerous condition “ ‘over and above’ ” such inherent risk was created by the lack of seating or security personnel (Morgan v State of New York, [463]*46390 NY2d 471, 484-485). Since the children too had assumed the risk of being trampled (see, Gilchrist v City of Troy, supra; cf., Heard v City of New York, 82 NY2d 66, 71), the danger-invites-rescue does not apply (see, Guarino v Mine Safety Appliance Co., 25 NY2d 460, 465). Concur—Sullivan, J. P., Lerner, Rubin and Tom, JJ.

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—Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered December 17, 1997, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No triable issues of fact are raised by plaintiffs allegations that while watching a semi-professional football game from the sidelines near the middle of the field, he perceived some children also on the sidelines in danger of being trampled by onrushing players, and, attempting to push the children out of the way, was himself trampled by the players. Assuming, without deciding, that defendant City, the proprietor of this field located on the grounds of a public high school, breached a duty to spectators to provide seating or security personnel to keep people from getting too close to the play, such duty was negated, or such breach cannot be characterized as a direct cause of plaintiffs injuries, because plaintiff assumed the risk of being trampled. As the motion court pointed out, relying on plaintiffs General Municipal Law § 50-h testimony, “spectators were standing ‘all over the place’ indicating that there was available space to stand elsewhere other than where plaintiff chose to stand”, i.e., further back from the play (see, Gilchrist v City of Troy, 67 NY2d 1034; Cadieux v Board of Educ., 25 AD2d 579; see also, Akins v Glens Falls City School Dist., 53 NY2d 325, 329). The dangers of watching a football game from the sidelines of a field with no protective barriers are inherent in the sport and “ ‘perfectly obvious’ ”, and no dangerous condition “ ‘over and above’ ” such inherent risk was created by the lack of seating or security personnel (Morgan v State of New York, [463]*46390 NY2d 471, 484-485). Since the children too had assumed the risk of being trampled (see, Gilchrist v City of Troy, supra; cf., Heard v City of New York, 82 NY2d 66, 71), the danger-invites-rescue does not apply (see, Guarino v Mine Safety Appliance Co., 25 NY2d 460, 465). Concur—Sullivan, J. P., Lerner, Rubin and Tom, JJ.

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257 A.D.2d 462, 683 N.Y.S.2d 528, 1999 N.Y. App. Div. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cannavale-v-city-of-new-york-nyappdiv-1999.

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