Practice point: Here, the defendant-town failed to satisfy its prima facie burden of
establishing its entitlement to judgment as a matter of law by
eliminating all triable issues of fact as to the applicability of the
doctrine of primary assumption of the risk. The evidence submitted in support of its motion,
including the plaintiff's deposition testimony and photographs of the
basketball court and metal cap, demonstrated that the metal cap was
small, was raised only slightly above ground level, was painted the same
color as the basketball court, and was difficult to see from more than a
few feet away. Under these circumstances, a triable issue of fact
exists as to whether the condition was concealed, and it cannot be said
as a matter of law that the plaintiff assumed the risks associated with it.
Student note: By engaging in a sport or recreational activity, a participant consents
to those commonly appreciated risks which are inherent in and arise out
of the nature of the sport generally and flow from such participation. Participants properly may be held to have
consented, by their participation, to those injury-causing events which
are known, apparent, or reasonably foreseeable consequences of
participation, but not to unassumed, concealed, or unreasonably
increased risks.
Case: Bunn v. Town of N. Hempstead, NY Slip Op 05727 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Computing maintenance, and prenuptial agreements.
