Opinion
103092/12
03-19-2015
Robert Germano, Plaintiff, v. City of New York, and AMERICAN GOLF CORPORATION, Defendant(s).
The following papers numbered 1 to 3 were fully submitted on the 14th day of January, 2014.
Papers
Numbered
Notice of Motion for Summary Judgment by Defendants THE CITY OF NEW YORK and AMERICAN GOLF CORPORATION, with Supporting Papers and Exhibits (dated November 13, 2014)1
Affirmation in Opposition by Plaintiff, with Exhibits (January 8, 2015)2
Reply Affirmation of Defendants THE CITY OF NEW YORK and AMERICAN GOLF CORPORATION, with Exhibits (dated January 13, 2015) 3
Upon the foregoing papers, the joint motion of defendants THE CITY OF NEW YORK and the AMERICAN GOLF CORPORATION (hereinafter AGC) for summary judgment and dismissal of the complaint is granted.
Plaintiff does not oppose that portion of the motion seeking summary judgment on behalf of defendant THE CITY OF NEW YORK. Accordingly, the balance of the motion will be treated as one for summary judgment by the remaining codefendant AMERICAN GOLF CORP.
Plaintiff commenced this action to recover damages for injuries allegedly sustained when he tripped and fell on a "clump" of wet, matted grass on the 13th fairway of the LaTourette Golf Course on Staten Island. According to the complaint, plaintiff began the round of golf at approximately 12 noon on the day of the accident. Since the grass was very wet, golf carts were barred from the fairway. By approximately 2:00 - 3:00 pm, plaintiff had reached the 13th hole, where the grass was in the process of being cut. Plaintiff maintains that when he stepped out of the golf cart and began walking down hill towards his ball, he tripped and fell on a clump of wet grass that purportedly was left on the fairway after the grass had been cut. In essence, plaintiff argues that by cutting the grass while it was still wet, clumps of slippery grass were allowed to form on the fairway, thereby creating an unexpected danger for golfers playing the course. In the complaint, plaintiff alleges that the remaining defendant, AGC, negligently caused his injury by failing to (1) properly maintain and repair the golf course; (2) properly cut and remove or disburse cut grass at the location of his fall; (3) provide plaintiff with a safe place to play; (4) insure that the course was kept free from hazardous conditions; (5) properly train and supervise its employees; (6) properly coordinate the activities of its employees; and (7) properly secure the golf course for plaintiff's safety. It is further alleged that, as a result of the foregoing, AGC created the dangerous condition which caused plaintiff to fall, and that it had actual or constructive notice of the dangerous and defective condition that caused his injury.
On the question of injury, plaintiff claims to have sustained, inter alia, a fracture to his right tibia and fibula, as a result of which he was required to undergo open reduction surgery which necessitated the use of an external fixator. He was also required to undergo additional surgery six weeks later to remove the external fixator. According to plaintiff, he continues to suffer pain, tenderness, weakness, loss of function and diminished strength in his right leg. He also claims to experience limitations and restriction of motion. In addition, plaintiff claims to suffer from anxiety, having become severely concerned over the possibility of future complications, and maintains as well that these injuries have aggravated, activated and/or precipitated underlying hypertrophic, degenerative, arthritic, circulatory, arterial, venous and /or systemic conditions which were asymptomatic prior to the accident. Finally, each of these injuries and their respective sequelae are alleged to be permanent, chronic and lasting in nature.
In the current application, AGC moves for summary judgment dismissing the complaint as against it on the ground that there is no triable issue of fact as to any negligence on its part with regard to the condition of the golf course on the date of the accident. In addition, AGC maintains that plaintiff's action is barred by the doctrine of primary assumption of risk, which applies whenever a willing participant in a sporting or recreational activity is aware of the inherent risks involved in that sport or activity, appreciates the nature of those risks, and voluntarily assumes those risks by participating therein (see Bukowski v. Clarkson Univ., 19 NY3d 353, 358).
Here, AGC maintains that plaintiff is an experienced golfer who has played golf on various courses, including LaTourette, on numerous occasions prior to the date of his accident. As a result, he must certainly have been aware of the numerous variations in topography which they typically present. In addition, plaintiff had to know of the wet conditions existing at La Tourette on the date in question, since he was told that golf carts had been barred from the fairways for that very reason. More to the point, plaintiff testified at his EBT that this particular golf course had the consistency of a "sponge" on the date of his injury, and that the grounds were saturated. Nevertheless, he chose to play, and had already completed 12 holes of golf before he fell on the 13th fairway. Plaintiff further admitted at his EBT that he actually saw defendant's employees cutting the grass in the area of his fall immediately prior thereto, and that he actually had to wait for them to finish mowing before resuming play. Accordingly, defendant argues that plaintiff was well aware of the conditions existing on the course on the day in question and, by virtue of his experience, the risk of compromised footing associated with playing on a wet and freshly mown fairway. In fact, plaintiff admitted during his EBT that he knew that the freshly-mown grass may have increased the hazard of playing in the wet. Nevertheless, he voluntarily chose to play.
AGC further notes that it is essential to assessing the duty owed to persons sustaining personal injuries during sporting events or recreational activities to determine whether the "condition" purportedly caused by defendant's negligence was "unique" or operated to create a danger in excess of the ususal dangers inherent in the activity in question. In this regard, defendant claims that plaintiff acknowledged at his EBT that mowing could exacerbate the usual dangers associated with playing on a wet golf course. Accordingly, defendant argues that the conditions confronting plaintiff on the day in question were known, open and obvious, the likely result of a recent hurricane. In addition, rather than constituting a trap or a snare, defendant maintains that plaintiff was or should have been aware that, e.g., slipping, was a reasonably foreseeable consequence of playing on a wet golf course which he knew had just been mowed. As a result, AGC argues that there is no triable issue of fact regarding its purported negligence as a proximate cause of plaintiff's injury, the risk of which he had voluntarily assumed.
In opposition, plaintiff contends that a triable issue of fact exists as to whether the assumption of risk doctrine can be applied in this case. According to plaintiff, the accident was caused by a condition that was not inherent to the sport of golf, i.e., a slippery clump of matted grass created by defendant's decision to cut the grass while it was still wet, and that plaintiff was unaware of the condition prior to falling. In connection with the foregoing, plaintiff argues that it was not the wet grass that caused him to slip and fall, but rather the clumped and matted grass caused by the mowing which created the dangerous and slippery condition.
Conceding that he admitted during his EBT that he both saw golf course employees cutting the grass prior to "teeing off" at the 13th hole, and that he actually had to wait until they were done mowing the fairway in order to continue playing, plaintiff nevertheless claims that he was not aware that the slippery clumps of wet grass that were the natural result of mowing could cause him to lose his footing. In this regard, plaintiff notes that AGC's superintendent, Sean Crawford admitted during his EBT that mowing the grass on a golf course while it was still wet could cause the cut grass to matte or clump-up. Although plaintiff also testified that mowing could increase the danger of playing on a wet golf course, it is his position that since a clump of wet grass is not a normal condition that a golfer would expect to encounter while playing golf, he did not assume that risk by electing to play on the wet course.
This Court does not agree.
It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). Once that initial burden has been satisfied, however, it is incumbent upon the party opposing the motion to adduce sufficient admissible evidence to establish the existence of a triable issue (id.). As a consequence, the court's only role in deciding a motion for summary judgment is to determine whether any material issue of fact exists which would require a trial. In deciding so, it is a principle of long standing that "[m]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat the motion (Zuckerman v. City of New York, 49 NY2d 557, 562). Here, it is the opinion of this Court that defendant has established its prima facie entitlement to judgment as a matter of law. In opposition, plaintiff has failed to raise a triable issue of fact.
The Court of Appeals has held that "by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation" (Morgan v. State of New York, 90 NY2d 471, 484). Thus, a participant is deemed to consent to the risk of those "injury-causing events which are [the] known, apparent or reasonably foreseeable consequences of the participation" (Sedita v. City of New York, 8 AD3d 256, 257, quoting Turcotte v. Fell, 68 NY2d 432, 439 [internal quotation marks omitted]). In addition, the assumption of risk doctrine has been held to apply "to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on and imports a knowledge and awareness of the particular hazard that caused the injury" (Diderou v. Pinecrest Dunes, 34 AD2d 672, 673 [citations omitted]). These have been held to include the risks associated with playing under less than optimal conditions, e.g., of an outdoor venue with an irregular surface (see Sykes v. County of Erie, 94 NY2d 912, 913). Accordingly, "[i]t is not necessary that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury [by] the mechanism from which the injury results" (Sedita v. City of New York, 8 AD3d at 257, quoting Maddox v. City of New York, 66 NY2d 270, 278 [internal quotation marks omitted; emphasis added]). Nonetheless, a plaintiff's awareness of the risk assumed must be viewed against the background of the skill and experience of that particular plaintiff (see Dillard v. Little League Baseball, 55 AD2d 477, 480). Where the doctrine applies, an owner is duty-bound to exercise care to make sure that the premises are as safe as they appear to be, but "[i]f the risks of the activity are fully comprehended or perfectly obvious, plaintiff [is deemed to] ha[ve] consented to them and defendant has performed its duty" ( Turcotte v. Fell, 68 NY2d 432, 439).
At bar, the evidence presently before the court indicates that plaintiff was aware that the grass on the course was wet on the date of the subject accident. In fact, plaintiff admitted that the course was "saturated", and "like a sponge". As a result, it would be apparent to any experienced golfer such as plaintiff that the wet conditions existing on the course would operate to increase the risk of slipping. Plaintiff admitted as much during his EBT, and given the undisputed testimony that a hurricane had struck the area only two or three days previously, it should have been perfectly obvious to even a novice golfer that the course would present less-than-optimal playing conditions on the day of the accident (see Bukowski v. Clarkson Univ., 19 NY3d 353, 356). Nevertheless, plaintiff proceeded to play 12 holes of golf despite the obviously wet and soggy condition of the course before reaching the 13th fairway. Under these circumstances, given his level of experience, plaintiff must be deemed to have accepted personal responsibility for any increased risk of injury posed by the condition of the course (id.). Being familiar with the topography of LaTourette, and having been forced to wait until defendant's employees finished mowing the 13th fairway before resuming play, plaintiff will not be heard to disavow this knowledge, or the increased potential for slipping or tripping on matted clumps of wet grass that were likely to have been left behind by the mower.
Furthermore, there is a dearth of evidence that any clumps of grass that may have been laid down by the mower presented such an unusual or unique condition to golfers, especially one who had witnessed the mowing, to constitute either a trap or hidden danger for which defendant may be held liable (see Morgan v. State of New York, 90 NY2d at 485). Nor has this happenstance been shown to present such an extreme aberration as to be unforeseeable by golfers playing in the wet. It is well known that the game of golf is played outdoors, typically on uneven terrain composed of various hills, slopes, and depressions; that different parts of the course are covered with grasses of varying lengths; and that the condition of the course is continuously affected by the weather. In addition, it is well known that the grass clippings generated by mowing are permitted to fall to the ground. Thus, golfers can expect to encounter an assortment of conditions, including thunder storms, whose commonly appreciated risks they are deemed to assume by choosing to play. As was stated earlier in Sedita v. City of New York, (8 AD3d at 257), "[i]t is not necessary that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she [was] aware of the potential for injury [by] the mechanism from which injury results". This would include "any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on and imports a knowledge and awareness of the particular hazard that caused the injury" (Diderou v. Pinecrest Dunes, 34 AD2d at 673).
Finally, plaintiff's mere assertion that slippery clumps of matted grass may form on a wet golf course as a result of mowing is insufficient to demonstrate that their presence constitutes a trap or a snare. In the absence of any supporting evidence, plaintiff's claim that such conditions are beyond the scope of the risks inherent in playing golf in the wet represent pure speculation, conjecture or surmise, none of which will suffice to defeat a motion for summary judgment (see Zuckerman v. City of New York, 49 NY2d at 562).
Accordingly, it is
ORDERED that the motion for summary judgment of defendant THE CITY OF NEW YORK is granted without opposition, and it is further
ORDERED that the like relief requested by codefendant AMERICAN GOLF CORPORATION is also granted; and it is further
ORDERED that the complaint is dismissed; and it is further
ORDERED that the Clerk enter judgment accordingly.
E N T E R,
/s/
HON. THOMAS P. ALIOTTA
J.S.C.
Dated: March 19, 2015