Summary
ruling that, as a matter of law, assumption of the risk barred plaintiff's claim for damages based on slipping and falling while playing on puddle-covered court
Summary of this case from Homen v. U.S.Opinion
January 30, 1995
Appeal from the Supreme Court, Suffolk County (Seidell, J.).
Ordered that the order is reversed, on the law, with costs, the defendant's motion is granted, and the complaint is dismissed.
The plaintiff slipped and injured himself while playing "walleyball" on an indoor court operated by the defendant Unique Raquetball and Health Clubs, Inc. According to the plaintiff, the court was damp and covered with water puddles. Despite this condition, the plaintiff chose to play anyway and injured himself during the game. Notably, the plaintiff had played on the same court, under similar conditions, several times in the past.
The Supreme Court denied the defendant's motion to dismiss, which relied on an assumption of the risk theory. We reverse.
The record demonstrates that the injury-producing defect was not concealed and that the plaintiff was fully aware of its existence prior to his voluntary participation in the game (see, Ferraro v. Town of Huntington, 202 A.D.2d 468; Morales v. New York City Hous. Auth., 187 A.D.2d 295, 296; Bryne v. Westchester County, 178 A.D.2d 575). As previously noted, the plaintiff stated that he had played on the very same court on prior occasions when similar conditions existed. Under these circumstances, the doctrine of assumption of the risk warrants the granting of judgment to the defendant (see, Gonzalez v. City of New York, 203 A.D.2d 421; Morales v. New York City Hous. Auth., supra, 187 A.D.2d 295, 296; Russini v. Incorporated Vil. of Mineola, 184 A.D.2d 561; Bryne v. Westchester County, supra; Hoffman v. City of New York, 172 A.D.2d 716). Ritter, J.P., Copertino, Joy and Hart, JJ., concur.