Summary
In LaSalvia v. City of New York, 305 A.D.2d 267, 759 N.Y.S.2d 79, the First Department held that, where the plaintiff allegedly "tripped on a schoolyard pavement defect while playing an unsupervised game of touch football... on a day and time when school was not in session, the 22–year–old plaintiff assumed the risks inherent in the schoolyard touch football game, including any obvious risk posed by the irregular playing surface" (id. at 267, 759 N.Y.S.2d 79).
Summary of this case from Philius v. City of N.Y.Opinion
1191
May 20, 2003.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 2, 2001, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Mary Elizabeth Burns, for plaintiff-appellant.
Marta Ross, for defendants-respondents.
Before: Tom, J.P., Mazzarelli, Rosenberger, Ellerin, Williams, JJ.
The complaint seeks damages for injuries allegedly sustained by plaintiff when he tripped on a schoolyard pavement defect while playing an unsupervised game of touch football. Under the circumstances herein, on a day and time when school was not in session, the 22-year-old plaintiff assumed the risks inherent in the schoolyard touch football game, including any obvious risk posed by the irregular playing surface ( see Sykes v. County of Erie, 94 N.Y.2d 912, 913), and since the defect was not concealed but was plainly visible ( cf. Ellis v. City of New York, 281 A.D.2d 177), the motion court properly found the defect sufficiently obvious to warrant summary judgment dismissing the complaint (see Furgang v. Club Med, 299 A.D.2d 162, lv denied 99 N.Y.2d 504;McKey v. City of New York, 234 A.D.2d 114).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.