Opinion
June 22, 1998
Appeal from the Supreme Court, Suffolk County (Doyle, J.).
Ordered that the order is affirmed, with costs.
The plaintiff was injured while playing basketball on an outdoor court located at the Helen B. Duffield Elementary School in Ronkonkoma, New York. The plaintiff claims that he was dribbling the ball toward the basket when he stepped into a hole or depression on the paved surface of the court. According to the plaintiff, the hole was about "a foot or two" wide, "a couple of inches" deep, and at least partially covered by grass growing out of the break in the asphalt. The property owners subsequently moved for summary judgment, contending that the doctrine of assumption of the risk barred the plaintiff from recovery, and that the action should be dismissed because they had no notice of the alleged defect. The Supreme Court found that the plaintiffs claim that the hole was concealed by grass created an issue of fact as to whether the doctrine of assumption of the risk applied, but granted the appellants' motion for summary judgment on the ground that they had no actual or constructive notice of the defective condition. We now affirm the dismissal of the action, but upon the alternative ground that the doctrine of assumption of the risk applies under the circumstances of this case (see, Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539; Giaimo v. Roller Derby Skate Corp., 234 A.D.2d 340).
It is well settled 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 N.Y.2d 471, 484). This encompasses risks associated with the construction of the playing field, and any open and obvious conditions on it (see, Maddox v. City of New York, 66 N.Y.2d 270, 277; Garafola v. City of New York, 247 A.D.2d 581; Walner v. City of New York, 243 A.D.2d 629). Here, the parties' submissions, which included the plaintiffs deposition testimony and a photograph depicting the accident site, reveal that the cracks and breaks in the paved surface of the court were clearly visible, and not concealed by grass. Since the plaintiff voluntarily chose to play basketball on a court surface with a faulty condition that was open and obvious, he assumed the risk of injury from stepping into a hole or depression (see, Maddox v. City of New York, supra; McKey v. City of New York, 234 A.D.2d 114; Russini v. Incorporated Vil. of Mineola, 184 A.D.2d 561).
Rosenblatt, J. P., Ritter, Krausman and Goldstein, JJ., concur.