Opinion
No. 2021-05696 Index No. 612957/19
12-20-2023
C.P.G., etc., et al., respondents, v. Uniondale School District, appellant.
Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Uniondale, NY (Kathleen D. Foley of counsel), for appellant.
Congdon, Flaherty, O'Callaghan, Fishlinger & Pavlides, Uniondale, NY (Kathleen D. Foley of counsel), for appellant.
BETSY BARROS, J.P., FRANCESCA E. CONNOLLY, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Helen Voutsinas, J.), entered July 27, 2021. The order, insofar as appealed from, denied the defendant's cross-motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's cross-motion for summary judgment dismissing the complaint is granted.
The infant plaintiff, who was an eighth grade student at a school located within the defendant Uniondale School District, allegedly was injured while playing a "pickup" game of soccer on a field at Turtle Hook Middle School during a school-sponsored event. The infant plaintiff and his father commenced this personal injury action, alleging that the infant plaintiff was injured due to dangerous conditions on the field and negligent supervision by the defendant's employees. In an order entered July 27, 2021, the Supreme Court, inter alia, denied the defendant's cross-motion for summary judgment dismissing the complaint. The defendant appeals.
Under the doctrine of primary assumption of risk, "[i]f the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he or she has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be" (Brown v City of New York, 69 A.D.3d 893, 893; see Morgan v State of New York, 90 N.Y.2d 471, 484; Chiaramonte v Town of Smithtown, 192 A.D.3d 657, 658). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see E.B. v Camp Achim, 156 A.D.3d 865, 866). Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks (see Grady v Chenango Val. Cent. Sch. Dist., 40 N.Y.3d 89, 95; Morgan v State of New York, 90 N.Y.2d at 485; Chiaramonte v Town of Smithtown, 192 A.D.3d at 658).
Here, the evidence submitted in support of the defendant's cross-motion, which included, inter alia, a transcript of the infant plaintiff's deposition testimony, demonstrated, prima facie, that the doctrine of primary assumption of the risk applied to this case and required dismissal of the complaint. The infant plaintiff testified that he fell because of a combination of, among other things, pebbles on the field and wet and muddy grass. The infant plaintiff further testified that there were no puddles, and the grass was wet from the previous day's rain and other students playing with water balloons on the field. However, neither the pebbles nor the wet grass described in this case presented a concealed or unreasonably increased risk beyond those inherent in the activity of outdoor soccer (see Chiaramonte v Town of Smithtown, 192 A.D.3d at 658; Vecchione v Middle Country Cent. School Dist., 300 A.D.2d 471, 472; Reilly v Long Is. Jr. Soccer League, 216 A.D.2d 281, 282; Schiffman v Spring, 202 A.D.2d 1007, 1009; Gallagher v Town of N. Hempstead, 144 A.D.2d 637, 637), regardless of whether the wet grass was caused by rain or water balloons (see Sauer v Hebrew Inst. of Long Is., 17 A.D.2d 245, 246, affd 13 N.Y.2d 913; see also Henry v Roosevelt School Dist., 29 A.D.3d 954, 955; Barbato v Hollow Hills Country Club, 14 A.D.3d 522, 522). Furthermore, merely allowing children to play on a field with pebbles and wet grass does not constitute negligent supervision (see Fintzi v New Jersey YMHA-YWHA Camps, 97 N.Y.2d 669, 670; Snyder v Morristown Cent. School Dist. No. 1, 167 A.D.2d 679, 679). To hold otherwise would effectively prohibit schools from utilizing outdoor playing fields (see Snyder v Morristown Cent. School Dist. No. 1, 167 A.D.2d at 679; see also Fintzi v New Jersey YMHA-YWHA Camps, 97 N.Y.2d at 670; Sauer v Hebrew Inst. of Long Is., 17 A.D.2d at 246). In opposition, the plaintiffs failed to raise a triable issue of fact.
The defendant's remaining contentions either are without merit, are not properly before this Court, or need not be reached in light of our determination.
Accordingly, the Supreme Court should have granted the defendant's cross-motion for summary judgment dismissing the complaint.
BARROS, J.P., CONNOLLY, MILLER and WOOTEN, JJ., concur.