Summary
finding due diligence satisfied but distinguishing Pizzolo on the ground that, inMatos, the defendant's business address was not "readily ascertainable"
Summary of this case from Kopec v. GMG Construction Corp.Opinion
October 19, 1992
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is affirmed, with costs.
The plaintiff Thomas Pascucci was injured when he collided with a light pole located in the "fair" territory of a softball field owned and maintained by the defendant. He was a member of an adult amateur softball league organized under the auspices of the defendant and, at the time of his injury, he was playing the position of left field and was pursuing a fly ball which had been hit to the outfield by a member of the opposing team. He subsequently commenced the instant action, contending that the defendant had been negligent in locating the pole in this area of the field and in failing to place padding around it or to warn players of the potential danger it posed. The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. We affirm.
It is well settled that those who voluntarily participate in a sporting activity "may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" (Turcotte v Fell, 68 N.Y.2d 432, 439; see, Hoffman v City of New York, 172 A.D.2d 716; Scaduto v State of New York, 86 A.D.2d 682, affd 56 N.Y.2d 762). The risks assumed by a voluntary participant "include the risks involved in the construction of the field" (Maddox v City of New York, 66 N.Y.2d 270, 277); hence, the landowner's duty of care is to protect such participants "from injuries arising out of unassumed, concealed or unreasonably increased risks" (Benitez v New York City Bd. of Educ., 73 N.Y.2d 650, 654; see, Melko v Town of Islip, 172 A.D.2d 729). Put another way, the owner only has "a duty 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, plaintiff has consented to them and defendant has performed its duty" (Turcotte v Fell, supra, at 439; see, Drew v State of New York, 146 A.D.2d 847; Perretti v City of New York, 132 A.D.2d 537).
In the instant case, the injured plaintiff admitted during pretrial examinations that he had been a member of the league for 3 1/2 years, that he previously had played softball at this same field on approximately 20 occasions, that he had played night games under the lights at this field on prior occasions, that he previously had caught fly balls in the outfield area of this ballfield during practice sessions, and that he had observed the light poles at the field prior to the date of the accident and thus was aware of their existence and location. Under these circumstances, the risk presented by the light pole was not a concealed one, and the injured plaintiff consciously assumed that risk by his voluntary participation in the game (see, e.g., Melko v Town of Islip, supra; Hoffman v City of New York, supra; cf., Henig v Hofstra Univ., 160 A.D.2d 761). Accordingly, the defendant satisfied its duty of exercising reasonable care to make the playing field conditions as safe as they appeared to be, and no further duty of care was owed to the injured plaintiff (see, e.g., Turcotte v Fell, supra; Scaduto v State of New York, supra). Mangano, P.J., Sullivan, Balletta and O'Brien, JJ., concur.