| McGrath v Shenendehowa Cent. School Dist. |
| 2010 NY Slip Op 06389 [76 AD3d 755] |
| August 12, 2010 |
| Appellate Division, Third Department |
| Theresa L. McGrath, Appellant, v Shenendehowa Central SchoolDistrict, Respondent. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (John Wright of counsel), forrespondent.
Peters, J.P. Appeal from an order of the Supreme Court (Nolan, Jr., J.), entered July 9, 2009in Saratoga County, which, among other things, granted defendant's motion for summaryjudgment dismissing the complaint.
On May 3, 2005, plaintiff, then a high school senior and member of the Bethlehem HighSchool girls varsity lacrosse team, sustained injuries during a regulation game held againstdefendant's high school in the Town of Clifton Park, Saratoga County. According to plaintiff,while performing a "roll dodge" maneuver, she felt her left foot slide into the ground and "catch"as her body continued to pivot, causing severe damage to her knee. She thereafter commencedthis action alleging, among other things, that defendant negligently maintained the lacrosse fieldand created a dangerous condition by using a sandy or soft material to fill ruts on the field.Following joinder of issue and discovery, defendant moved for summary judgment dismissingthe complaint based upon the doctrine of assumption of risk and plaintiff cross-moved forsummary judgment dismissing said affirmative defense. Supreme Court denied plaintiff's crossmotion and granted defendant's motion, finding that the condition of the field was open andobvious and that "plaintiff, as a matter of law, assumed the risk of being injured by falling andsustaining her serious injuries." Plaintiff now appeals.[*2]
"A person who voluntarily participates in a sport orrecreational activity assumes the risks which are inherent in and arise out of the nature of thesport generally and flow from such participation, including those risks associated with theconstruction of the playing surface and any open and obvious condition on it" (Lincoln v Canastota Cent. SchoolDist., 53 AD3d 851, 851-852 [2008] [internal quotation marks and citations omitted];see Maddox v City of New York, 66 NY2d 270, 277 [1985]; Brookstone v State of New York, 64AD3d 1023, 1024 [2009]). Participants in such activities will not, however, be deemed tohave assumed concealed or unreasonably increased risks (see Morgan v State of NewYork, 90 NY2d 471, 486 [1997]; Benitez v New York City Bd. of Educ., 73 NY2d650, 658 [1989]; Martin v State of NewYork, 64 AD3d 62, 64 [2009], lv denied 13 NY3d 706 [2009]). The applicationof the doctrine of assumption of risk is generally a question of fact to be resolved by a jury(see Maddox v City of New York, 66 NY2d at 279; Pantalone v Talcott, 52 AD3d 1148, 1149 [2008]).
Here, we conclude that the record reveals questions of fact as to whether the assumption ofrisk doctrine is applicable. It is undisputed that, several months prior to plaintiff's accident, thelacrosse field sustained tire marks and ruts two to three inches in depth after a student did"donuts" on the field with a motor vehicle. Defendant's maintenance and ground crew seeded androlled the damaged areas shortly after that incident and then again approximately one monthprior to plaintiff's accident. Although plaintiff candidly acknowledged in her General MunicipalLaw § 50-h and deposition testimony that she observed ruts, bare spots and patches "thatwere lower than the rest of the field" on the day of her accident, she does not assert that herinjury was caused by any of these observable conditions. Rather, she claims that she was injuredwhen her foot became caught in what can essentially be deemed a sinkhole—that is, herfoot sank into a deep rut, the depth of which was concealed by a sandy soil, but which appearedto be a typical ungrassy, hard patch of ground.
In describing her fall, plaintiff stated that she felt her foot "slide and catch" on "soft ground"that was a "different surface, like firmness," in comparison to the rest of the field. She elaboratedthat her foot slid into a "sand or finer-type substance . . . [b]ut it wasn't the same as. . . the hard dirt or the grass." She also testified that she had no knowledge that thefield contained dirt patches that, in reality, consisted of soil and/or sand that had been placedwithin deep ruts, specifically stating that "it just seemed that there were areas that weren't grassand similar to other fields" and that she "didn't know the difference from looking at it." In heraffidavit, plaintiff clarified that she was caused to fall when the field "g[a]ve way" and her foot"slid downward and then g[o]t caught in the ground." She averred that she was only able toobserve the surface condition of the field and that, although she noticed tire marks and patches ofhard dirt with no grass—which was not uncommon due to wear on a lacrossefield—she had no knowledge that the dirt patch actually consisted of loose soil or sandconcealing a deep rut.
A video of the field taken the day after plaintiff's accident also discloses that, althoughappearing to be a level surface, portions of the field contained ruts and tracks that were filledwith a loose material that could be easily displaced. Upon his inspection of the particular areawhere plaintiff fell and a review of the video, plaintiff's expert averred that the depth of the rutthat allegedly caused plaintiff's injury exceeded one inch, that the fill employed by defendantdisguised the true depth of the rut and that, as a result, this area was not as safe as it appeared tobe. Viewing this evidence in a light most favorable to plaintiff and providing her with the benefitof every favorable inference (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]; Ballou v Ravena-Coeymans-SelkirkSchool Dist., 72 AD3d 1323, 1326 [2010]), we find a genuine issue of fact as towhether the rut that allegedly caused plaintiff's accident was an open and obvious [*3]condition or constituted a concealed risk (see Swan v City ofNew York, 272 AD2d 394 [2000]; Rios v Town of Colonie, 256 AD2d 900, 901[1998]; Warren v Town of Hempstead, 246 AD2d 536, 537 [1998]; Cronson v Townof N. Hempstead, 245 AD2d 331 [1997]; compare Paone v County of Suffolk, 251AD2d 563, 564 [1998]; Rubin v Hicksville Union Free School Dist., 247 AD2d 601,602-603 [1998]).[FN*]Under these circumstances, it is for a jury to assess whether "defendant has performed its duty bymaking the conditions as safe as they appear[ed] to be" (Lincoln v Canastota Cent. SchoolDist., 53 AD3d at 852 [internal quotation marks and citations omitted]; see Pantalone vTalcott, 52 AD3d at 1149; Connor v Tee Bar Corp., 302 AD2d 729, 730 [2003]).
Stein and McCarthy, JJ., concur.
Egan Jr., J. (dissenting). Respectfully, we dissent. In relying on the video taken of the fieldand plaintiff's self-serving affidavit, wherein she states that she was unaware of the material usedto fill the ruts that she observed on the field (see Valenti v Exxon Mobil Corp., 50 AD3d 1382, 1384 [2008];Campagnano v Highgate Manor of Rensselaer, 299 AD2d 714, 715 [2002]), the majoritydisregards plaintiff's prior sworn testimony that, during the warmup before the game, sheobserved areas without grass, tire marks throughout the field, and ruts and big patches that werelower than the rest of the field and filled in with a "sand type of stuff." Plaintiff also testified thatduring the warmup prior to the game, she thought that "this is a really bad field" and "someone'sgoing to get hurt." As plaintiff was aware of both the ruts on the field prior to the fall and of theconsistency of the material used to fill those ruts, she assumed the risks associated with her play.To hold otherwise would essentially nullify the assumption of risk doctrine by permittinglitigation when a plaintiff admits to being aware of an open and obvious condition, but is unableto foresee "the exact manner in which his or her injury occurred" (Maddox v City of NewYork, 66 NY2d 270, 278 [1985]). Given that the doctrine of assumption of the risk "extendsto risks engendered by less than optimal conditions" (Martin v State of New York, 64 AD3d 62, 64 [2009] [internalquotation marks and citation omitted], lv denied 13 NY3d 706 [2009]), we would affirmSupreme Court's order.
Spain, J., concurs. Ordered that the order is modified, on the law, with costs to plaintiff, byreversing so [*4]much thereof as granted defendant's motion forsummary judgment dismissing the complaint; motion denied; and, as so modified, affirmed.
Footnote *: Although Supreme Court foundthe expert's opinion regarding both the adequacy of the fill employed by defendant and whether aclay-based soil would have been more stable than a sand-based soil to be too "conclusory andspeculative" to raise an issue of fact as to the applicability of the doctrine of assumption of risk,plaintiff was only required to put forth evidence to show that the rut in which her foot caughtwas not open and obvious. She did so here through her testimony and affidavit on the motions.The expert's opinion as to whether defendant's use of a different type of soil would haveprevented her accident, while necessary to establish plaintiff's negligence claim at trial, has nobearing on the applicability of the doctrine of assumption of risk—the only issue raised bydefendant on its summary judgment motion.