Palladino v. Lindenhurst Union Free School District

84 A.D.3d 1194, 924 N.Y.S.2d 474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 2011
• Status: Published

Opinions

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Molia, J.), entered April 16, 2010, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

The plaintiff’s infant son, Carl Palladino (hereinafter the infant), was playing handball on the defendant’s premises when he allegedly stepped on an improperly placed grate, sustaining personal injuries. The infant was aware of the condition of the grate, having seen it prior to the incident on the date of the accident and on a prior date when he last played handball in the same area.

The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon (see Ziegelmeyer v United States Olympic Comm., 7 NY3d 893 [2006]; Sykes v County of Erie, 94 NY2d 912 [2000]; Maddox v City of New York, 66 NY2d 270 [1985]; Brown v City of New York, 69 AD3d 893 [2010]; Manoly v City of New York, 29 AD3d 649 [2006]; Morlock v Town of N. Hempstead, 12 AD3d 652 [2004]). Where, as here, the risks are known by or 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 (see Turcotte v Fell, 68 NY2d 432, 439 [1986]; Morales v Coram Materials Corp., 64 AD3d 756, 758 [2009]; Joseph v New York Racing Assn., 28 AD3d 105, 108 [2006]). The defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing that the infant assumed the risk of injury by voluntarily participating in the handball game despite his knowledge that doing so could bring him into contact with the open and obvious, improperly placed metal grate (see Trevett v City of Little Falls, 6 NY3d 884 [2006]; Brown v City of New York, 69 AD3d at 894; Ribaudo v La Salle Inst., 45 AD3d 556 [2007]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

In light of our determination, we need not address the merits of the parties’ remaining contentions. Balkin, Austin and Sgroi, JJ., concur.