Hornstein v. State

30 A.D.2d 1012, 294 N.Y.S.2d 320, 1968 N.Y. App. Div. LEXIS 3130

Opinion

Herlihy, J.

Appeal by the claimants from a judgment in favor of the State entered on May 28, 1965, upon a decision of the Court of Claims (46 Misc 2d 486). Upon the present record there was a question of fact presented to the trial court as to the negligent construction of the golf course at Jones Beach State Park. The court chose the version most favorable to the State and there is no basis for this court to set aside that finding. (Harrow v. State of New York, 21 A D 2d 571, affd. 17 N Y 2d 619.) We would further note that participants in and observers of sporting events are generally held to have assumed the risks of injury inherent in the nature of the sport. (See McGee v. Board of Educ. of City of N. Y., 16 A D 2d 99, app. dsmd. 12 N Y 2d 1100; Baker v. Topping, 15 A D 2d 193; Trauman v. City of New York, 208 Misc. 252.) Such an assumption of risk would not preclude a recovery for negligent acts which unduly enhance such risks, but the trial court was not bound to find such negligence in the present record against the State as the owner of the golf course. Judgment affirmed, without costs. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.