In Leitner v. City of New York (New York County Supreme Court, Index No. 153361/13, decided on or around June 28, 2018), the defendant City of New York's motion for summary judgment was denied as the Court held, among other things, that an "assumption of risk" defense does apply in a premises liability case when the subject defect is not inherent in the sport being watched by a plaintiff. Particularly, the case arose after the plaintiff, while on a City of New York basketball court and watching others play basketball, was caused to fall and sustain injuries as a result of a crack in the basketball court floor. The defendant eventually moved for summary judgment, seeking to dismiss the case, with arguments including that the plaintiff voluntarily "assumed the risk" as he was a spectator at a sporting event.
The Court denied the defendant's motion, holding, among other things, the following: "...[T]his Court finds that cracks in a basketball court are not inherent in the sport of basketball. Nor do cracks 'arise out of the nature of the sport generally and flow from such participation' of playing basketball...While the doctrine may apply in situations where plaintiff's injury was caused by an irregular surface, such application is proper to 'irregular surfaces or features in playing spaces that existed as they were designed'...Basketball court are not designed with cracks in them...it cannot be said that the basketball court was designed with cracks in it. Indeed, tripping hazards of this nature indicate that the surface was not maintained; this sort of state of disrepair should not exculpate a landowner from liability."
Salvatore R. Marino, Esq.
