Summary
In Cannavale, the Appellate Division, First Department held "[t]he 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, 90 NY2d 471, 484-485)".
Summary of this case from GOTZ v. STATEOpinion
January 19, 1999.
Appeal from the Supreme Court, Bronx County (Lucindo Suarez, J.).
No triable issues of fact are raised by plaintiff's 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 plaintiff's injuries, because plaintiff assumed the risk of being trampled. As the motion court pointed out, relying on plaintiff's 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 N.Y.2d 1034; Cadieux v. Board of Educ., 25 A.D.2d 579; see also, Akins v. Glens Falls City School Dist., 53 N.Y.2d 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, 90 N.Y.2d 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 N.Y.2d 66, 71), the danger-invites-rescue does not apply ( see, Guarino v. Mine Safety Appliance Co., 25 N.Y.2d 460, 465).
Concur — Sullivan, J.P., Lerner, Rubin and Tom, JJ.