Dismissal of Negligence Action Brought by Seasoned Softball Player and Coach, Is Affirmed by New York’s Appellate Division, Second Department, Relying on Doctrine of Primary Assumption of Risk

By Carla Varriale-Barker, Segal McCambridge Singer & Mahoney, Ltd.

New York’s Appellate Division, Second Department has affirmed summary judgment on behalf of the Town of Smithtown, with costs, in a case involving a seasoned softball player and coach who fell on a muddy field during a charity tournament. In a Decision and Order dated March 3, 2021, the Court determined that plaintiff could not establish a negligent maintenance claim against the Town of Smithtown based on the record. 

Rather, the Appellate Division, Second Department held that the doctrine of primary assumption of risk barred her negligence action. As a voluntary participant, she assumed risks known or apparent in the activity, and the muddy condition of the field was neither concealed nor unreasonably increased. In fact, plaintiff admitted she was aware it had rained the day before the tournament. The Town of Smithtown made the conditions as safe as they appeared to be.  Consequently, plaintiff consented to the risk of injury and her negligence action was properly dismissed. 

Interestingly, the Appellate Division, Second Department defined “inherent risks” as those risks that are known, apparent, natural, or reasonably foreseeable. This underscored that the playing surface, an outdoor field, was exposed to the elements and could become wet and slippery after a rain, which was the case here. However, this language (and the doctrine of primary assumption of risk) could be applied to other natural or geographic features of the property, such as a tree, or natural features on the playing surface itself, such as a slope, rocky terrain, or exposed tree roots. 

This is a helpful decision for property owners, recreational leagues, municipalities, and sponsors of charity tournaments in New York who may be faced with similar claims. It underscores the powerful application of primary assumption of risk to defeat a participant’s negligence action under the right circumstances. 

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