Summary
In Samuels, the plaintiff alleged that after he fell, he found himself lying in a layer of dust, and he also reported to the hospital that he slipped on dust.
Summary of this case from Benjamin v. The Court Jester Athletic Club, Ltd.Opinion
9817 Index 22178/13
07-09-2019
Nigel SAMUELS, et al., Plaintiffs–Appellants, v. TOWN SPORTS INTERNATIONAL, LLC doing business as New York Sports Club, Defendant–Respondent.
The Law Office of David S. Klausner PLLC, White Plains (Crystal Massarelli of counsel), for appellants. Gordon & Rees, LLP, Harrison (Ryan G. Dempsey of counsel), for respondent.
The Law Office of David S. Klausner PLLC, White Plains (Crystal Massarelli of counsel), for appellants.
Gordon & Rees, LLP, Harrison (Ryan G. Dempsey of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Singh, JJ.
Order, Supreme Court, Bronx County (Rube´n Franco, J.), entered on or about April 6, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff Nigel Samuels contends he was injured when, while engaged in playing basketball on defendant gym's indoor court, he slipped on an accumulation of dust and fell.
Supreme Court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant's duty of care ( Morgan v. State of New York, 90 N.Y.2d 471, 483–484, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997] ). It relieves an owner or operator of a sporting venue from liability for those risks inherent in the sport that the plaintiff was participating in where the plaintiff was aware of the risks; had an appreciation of the nature of the risks; and voluntarily assumed the risks ( Morgan, 90 N.Y.2d at 484, 662 N.Y.S.2d 421, 685 N.E.2d 202 ). The underlying policy of the doctrine is "to facilitate free and vigorous participation in athletic activities" ( Cotty v. Town of Southampton, 64 A.D.3d 251, 254, 880 N.Y.S.2d 656 [2d Dept. 2009] [internal quotation marks omitted] ), not to exculpate a landowner from liability for ordinary negligence in maintaining its premises ( Sykes v. County of Erie, 94 N.Y.2d 912, 913, 707 N.Y.S.2d 374, 728 N.E.2d 973 [2000] ).
An owner may not be held liable if the injury results from certain conditions inherent in a participant's outdoor game of basketball ( id. [irregular surfaces]; see also Felton v. City of New York, 106 A.D.3d 488, 965 N.Y.S.2d 414 [1st Dept. 2013] [cracked, repaired and uneven outdoor court] ). The same is true if a condition on an indoor basketball court is otherwise open and obvious (see Egbebemwen A. v. New York City Dept. of Educ., 148 A.D.3d 440, 441, 48 N.Y.S.3d 404 [1st Dept. 2017] [wrestling mat on indoor gym floor]; Ciocchi v. Mercy Coll., 289 A.D.2d 362, 735 N.Y.S.2d 144 [2d Dept. 2001] [the plaintiff collided with badminton pole stored in the corner of the gym] ).
Here, defendant failed to establish that accumulated dust on an indoor basketball court is inherent in the sport of basketball. Nor did defendant establish that the alleged condition was an open and obvious one ( Morgan, 90 N.Y.2d at 488, 662 N.Y.S.2d 421, 685 N.E.2d 202 [tennis player tripped on torn net on indoor tennis court; not a risk inherent in the sport of tennis so as to relieve premises owner of liability, as a matter of law] ).