January 2013 - Parks & Recreation - 22

L AW REVIEW

BY JAMES C. KOZLOWSKI, J.D., PH.D.

Assumption Risk for Observable
Ballﬁeld Defects

S ILLUSTRATED BY THE CASES DESCRIBED HEREIN, where the land is as safe or dangerous as it appears to be, there may be no landowner liability for known or readily observable defects on the premises under the doctrine of assumption of risk. Assumption of risk
is a voluntary encounter with a known danger. Assumption of risk may apply to sports participants
or recreational users who voluntarily choose to remain on the land and continue their participation
despite the existence of an open and obvious defect on the premises.

Generally, landowner liability requires the existence of an unreasonably dangerous condition
on the premises. Within the context of landowner liability, an unreasonably dangerous condition
on the premises presupposes the defect is known
or discoverable to the landowner, but would not
be open and obvious to sport or recreational users of the premises through the reasonable use
of their senses.
Conversely, a premise defect would not be considered unreasonably dangerous if a sports participant or recreational user actually knew of the
dangerous condition, or should have discovered
a premise defect because the general scope of the
danger was readily observable or obvious through
the reasonable use of one's senses. When a dangerous condition on the land is known or open
and obvious, those using the premises and looking out reasonably for their own safety should be
able to avoid the premise defect. If they fail do so,
under the doctrine of assumption of risk, there
may be no landowner liability for negligence.

Outﬁeld Boulders
In the case of Regan v. City of New York, 2012
N.Y. Misc. LEXIS 5025, 2012 NY Slip Op 32660U
(N.Y. Sup. Ct. Oct. 12, 2012), plaintiff Scott Regan
was injured when he tripped and fell over a large
boulder located in the outﬁeld of a softball ﬁeld in
Randall's Island Park. The New York City Department of Parks and Recreation (Parks) operates and
maintains Randall's Island Park.
On the date of his accident, Regan testiﬁed
that the weather was sunny and clear. Regan had
played more than 10 times on Field 11, but the
ﬁeld had been changed right before his accident.
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Boulders had been placed around the outﬁeld to
separate the foul territory of the ﬁeld from a parking lot behind the ﬁeld.
During the game, a ﬂy ball was hit over Regan's
head, and while running to catch it, he ran into
one of the boulders. Regan was aware that the
boulders were on the ﬁeld, but he did not see the
one he fell over before he hit it. This particular
boulder was only approximately eighteen inches
to two feet high and 18 inches wide.
Philip Scott McAuliffe, a Parks Department supervisor in charge of maintaining and operating
Randall's Island Park, testiﬁed that Parks placed
the boulders, which he described as very large, at
the edge of the outﬁeld of ﬁeld between the fall of
2008 and the spring of 2009 in order to prevent
cars from entering the outﬁeld.
The boulders had an average height of three to
ﬁve feet and there were more than 10 of them in
the outﬁeld. They were movable only by heavy
equipment and would have been visible from the
ﬁeld's home plate. McAuliffe was unaware of any
prior accidents involving the boulders on Field
11, and he acknowledged that boulders were not
usually part of the structure of a baseball or softball outﬁeld, and that there was no indication or
warning of any kind in the outﬁeld that the boulders were present.
Regan alleged that the boulder within the ﬁeld
constituted a dangerous obstruction because
players would be unaware of the condition absent a warning track or fencing. Speciﬁcally, Regan
claimed the defendant City of New York " unreasonably increased the risk inherent in playing on the
ﬁeld by its placement of the boulders, which were
not part of the structure and conﬁguration of ﬁeld

January 2013 - Parks & Recreation

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