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Supreme Court of the State of New York, Kings County
Feb 20, 2008
2008 N.Y. Slip Op. 50292 (N.Y. Sup. Ct. 2008)



Decided February 20, 2008.

Plaintiffs were represented by David L. Kremen, Esq. of Oshman Mirisola, LLP.

Defendants were represented by Christopher G. Keane, Esq. of Russo, Keane Toner, LLP.

In this action, the infant plaintiff and her father allege that the infant sustained injury when, while rollerblading in the courtyard of the apartment building in which they resided, she fell because of a crack in the pavement. The moving Defendants, who are apparently the owner and managing agent of the building, seek summary dismissal of the Verified Complaint pursuant to CPLR 3212, based primarily on the doctrine of primary assumption of risk.

"The doctrine of [primary] assumption of risk is a form of measurement of a defendant's duty to a voluntary participant in a sporting [or recreational] activity." ( See Manoly v City of New York , 29 AD3d 649 , 649 [2nd Dept 2007]; see also Benitez v New York City Bd. of Educ., 73 NY2d 650, 650.) "A person who voluntarily participates in a sport or recreational activity is deemed to consent to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation'." ( See Casey v Garden City Park-New Hyde Park , 40 AD3d 901 -02 [2nd Dept 2007] [ quoting Morgan v State of New York, 90 NY2d 471, 484 (1997)].)

The risks deemed consented to include risks associated with any "open and obvious condition" on the "playing surface." ( Id., at 902 [ quoting Welch v Board of Educ. of the City of NY, 272 AD2d 469, 469 (2nd Dept 2000)].) Although "[a]wareness of the risks . . . is to be assessed against the background of the skill and experience of the particular plaintiff" ( Guzman v Iceland , 18 AD3d 704 , 705 [2nd Dept 2005]), "an open and obvious condition creating a risk of falling . . . may be obvious to even a novice skater" ( see Clements v Skate 9H Realty, Inc., 277 AD2d 614, 615 [3rd Dept 2000].)

Defendants contend that "[t]he record makes clear that [the infant] plaintiff was aware of the crack on which she fell prior to this incident, that the crack was an open and obvious condition, and that despite the same, plaintiff continued to rollerblade over the crack causing her to fall." (Affirmation in Support, ¶ 17.) Defendants point to the infant plaintiff's age, nearly 14 at the time of the accident, and that she had been aware of the crack in the pavement for several years before her fall, and had previously tripped over it. In support, Defendants cite cases involving skating rinks ( see Morlock v Town of Hempstead , 12 AD3d 652 [2nd Dept 2004]; Lo Piccolo v Town of Oyster Bay, 260 AD2d 606 [2nd Dept 1999]; Byrne v Westchester County, 178 AD2d 575 [2nd Dept 1991]), and use of unpaved land by a bicyclist ( see Goldberg v Town of Hempstead, 289 AD2d 198 [2nd Dept 2001].)

There is substantial authority, however, that where there is a duty to maintain sidewalks and public walkways "in a condition reasonably safe for all foreseeable users," the duty extends to bicyclists ( see Muallem v City of New York, 82 AD2d 420, 422-25 [2nd Dept 1981], aff'd 56 NY2d 866; see also Intintoli v Pierre Pellaton Apartments, Inc., 30 NY2d 548, aff'g 35 AD2d 993 [2nd Dept 1970]; Cruz v City of New York, 201 AD2d 606, 607-08 [2nd Dept 1994]; Davis v City of Cohoes, 131 AD2d 907, 907 [3rd Dept 1987]), and to rollerskaters ( see Errante v City of New York, 74 AD2d 122, 124-26 [1st Dept 1980]; see also McGuire v Spence, 91 NY 303, 305-06 [jumping rope].)

Although these opinions do not expressly render the doctrine of primary assumption of risk inapplicable to such circumstances, the extension of duty to bicyclists and rollerskaters is fundamentally inconsistent with the character and effect of the primary assumption of risk doctrine. Other cases, moreover, which involved bicyclists injured while riding on paved pathways in public parks, appear explicitly to render the doctrine inapplicable. ( See Moore v City of New York , 29 AD3d 751 , 752 [2nd Dept 2006]; Vestal v County of Suffolk , 7 AD3d 613 , 614-15 [2nd Dept 2004].)

Where the injury to the bicyclist or skater occurs on a sidewalk or public walkway, "liability . . . is to be tested by the same rule that would obtain had plaintiff been walking and then been injured." ( See Errante v City of New York, 74 AD2d at 124.) If there was negligence "in failing to keep the sidewalk in suitable condition for people to walk upon, and plaintiff, while roller skating, on the sidewalk, was injured because of such neglect, he could recover." ( See id.)

No reason appears why the same duty owed a bicyclist or rollerskater on a sidewalk should not apply to the courtyard of an apartment building where the same use is foreseeable, and

Defendants have suggested none. "The obligation of the owner of a private way to one lawfully using it is the same as that owed to one using a public highway." ( Dack v Trustees of Peekskill Military Academy, 247 AD 797, 797 [2nd Dept 1936]; Bach v United States, 197 F Supp 600, 603 [NDNY 1961]; see also Hyman v Barrett, 224 NY 436, 438 ["This [landlord] was under a duty to his tenant to use reasonable care in keeping the courtyard safe"].)

To the extent, therefore, Defendants' motion is founded on the doctrine of primary assumption of risk, it must be denied.

Defendants contend additionally that "based upon the evidence contained in the record . . . the condition complained of by the plaintiff in this action was by her own admission an open and obvious condition and was not inherently dangerous." (Affirmation in Support, ¶ 25.) Other than this and a similar conclusory statement referencing the infant plaintiff's deposition testimony ( see id., ¶ 23), Defendants make no showing that the pavement crack that allegedly caused the infant plaintiff to fall was open and obvious, and was not inherently dangerous.

"[A] landowner has no duty to warn of an open and obvious danger." ( Tangle v Jakob, 97 NY2d 165, 169.) "The situation is . . . a warning in itself." ( Olsen v State of New York, 30 AD2d 759, 759-60 (4th Dept 1968), aff'd 25 NY2d 665; see also Downes v Elmira Bridge Co., 179 NY 136, 142.) A condition is "open and obvious" where it is "readily observable by those employing the reasonable use of their senses." ( See Brown v Melville Industrial Associates, 34 AD3d 611, 611 [2nd Dept 2006]; see also Errett v Great Neck Park Dist ., 40 AD3d 1029 , 1029 [2nd Dept 2007].)

"[P]roof that a dangerous condition is open and obvious does not preclude a finding of liability against a landowner for the failure to maintain the property in a safe condition but is relevant to the issue of the plaintiff's comparative negligence." ( Cupo v Karfunkel , 1 AD3d 48 , 52 [1st Dept 2003]; see also Ruiz v Hart Elm Corp ., 44 AD3d 842 , 843 [2nd Dept 2007]; Slatsky v Great Neck Plumbing Supply, Inc ., 29 AD3d 776 , 777 [2nd Dept 2006].) In order to obtain summary judgment of dismissal, the landowner must show that "the condition complained of by the plaintiff was both open and obvious and, as a matter of law, was not inherently dangerous." ( See Cupo v Karfunkel, 1 AD3d at 52; see also Errett v Great Neck Park Dist., 40 AD3d at 1029 ["did not present an undue risk of harm"].)

Defendants make no showing that the pavement crack that allegedly caused the infant plaintiff to fall, "as a matter of law, was not inherently dangerous" ( see Cupo v Karfunkel, 1 AD3d at 52), and they have not, therefore, shown prima facie that they are entitled to summary judgment of dismissal. Although the court would have the discretion, based upon the photographs ( see Ruiz v Hart Elm Corp., 44 AD3d at 843-44) and the infant plaintiff's admitted awareness of the condition ( see Rao-Boyle v Alperstein , 44 AD3d 1022 , 1022 [2nd Dept 2007]; Lombardi v Silk Mill Condominiums, Inc ., 37 AD3d 429 , 430 [2nd Dept 2007]), to grant summary judgment limited to alleged liability for failure to warn ( see CPLR 3212 [e]), the Court declines to do so here. Plaintiffs' Verified Complaint does not allege a separate cause of action based upon failure to warn, and Defendants neither ask for partial summary judgment, nor make any mention of failure to warn.

The Court notes that nothing that has been said about the applicability of the doctrine of primary assumption of risk or about the limitation on a landowner's liability for "open and obvious" conditions on the land should be understood as affecting Defendants' reliance on the distinct defense of "implied assumption of risk." ( See Coole-Mayhew v Timm , 18 AD3d 948 , 950 [3rd Dept 2005]; Burleigh v General Electric Co., 262 AD2d 774, 775 [3rd Dept 1999]; Peebles v Circuit City Stores, Inc., 2003 US Dist LEXIS 14328, * 14-* 21 [SDNY].) "Implied assumption of risk" is "founded . . . on plaintiff's voluntarily encountering the risk of harm from defendant's conduct with full understanding of the possible harm to himself or herself" ( see Arbegast v Board of Educ., 65 NY2d 161, 169); and unlike "express" or "primary" assumption of risk, which avoid the defendant's duty, is encompassed with the statutory framework on comparative fault ( see id., at 170; CPLR Article 14-A.)

Because Defendants have failed to make a prima facie showing that they are entitled to summary judgment of dismissal, there is no need to consider Plaintiffs' opposition. ( See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853.)

Defendants' motion is, therefore, denied.

Summaries of


Supreme Court of the State of New York, Kings County
Feb 20, 2008
2008 N.Y. Slip Op. 50292 (N.Y. Sup. Ct. 2008)
Case details for


Case Details

Full title:Z.D., an infant by her Father and Natural Guardian S.D. and S.D.…

Court:Supreme Court of the State of New York, Kings County

Date published: Feb 20, 2008


2008 N.Y. Slip Op. 50292 (N.Y. Sup. Ct. 2008)