January 2013 - Parks & Recreation - 23

11. " In so doing, Regan characterized
the boulders as not " open and obvious. "
In response, Parks contended Regan
assumed the risk of injury because " the
boulders constituted a risk inherent in
playing on Field 11 and were open and
obvious. "
As described by the court, " a plaintiff engaged in athletic and recreational activity is deemed to have assumed
only fully comprehended or perfectly
obvious risks, those dangers inherent
in the sport. " Moreover, the court noted that " a participant assumes the risk
associated with the construction of a
playing ﬁeld and any open and obvious
conditions thereon. " In this particular
instance, the court found Regan assumed the risk of injury when he ran
into the boulder while playing softball.
Here, Regan admitted that he
saw the boulders before he began
playing on Field 11, and based on
his own expert's measurements,
the boulders were large enough to
be seen by plaintiff. They were thus
open and obvious, even if they
constituted a dangerous condition
or obstruction, [so the] plaintiff voluntarily assumed the risk of running into them in the outﬁeld by

Castro acknowledged that he had
played at least 40 softball games on the
subject ballﬁeld prior to the date of his
accident. Further, he acknowledged he
was aware of the presence and condition of the raised sewer grate prior to
the date of his accident. According to
Castro, he had always been " leery " of
the grate because he believed that it
posed a tripping hazard.
As noted by the court, " [t]he principle of primary assumption of risk extends to those risks associated with the
construction of a playing ﬁeld and any
open and obvious condition thereon. "
Where...the risks are known by
or perfectly obvious to the player,
he or she has consented to them,
and the property owner has discharged its duty of care by making
the conditions as safe as they appear to be.

Applying these principles to the facts
of the case, the court found Castro had
" assumed the risk of injury by voluntarily participating in the softball game
despite his knowledge that doing so
could bring him into contact with the
open and obvious raised sewer grate. "
As a result, the court entered judgment
in favor of the City.

choosing to play despite knowing
their obvious presence.

As a result, the court granted summary judgment in favor of defendants The City of New York and the
New York City Department of Parks and
Recreation.

SHUT TERSTOCK

Sewer Grate
Similarly, in the case of Castro v. City of
New York, 94 A.D.3d 1032; 944 N.Y.S.2d
155; 2012 N.Y. App. Div. LEXIS 3116; 2012
NY Slip Op 3125 (April 24, 2012), plaintiff Henry Castro was injured when he
tripped over a raised sewer grate while
playing softball on a cement ballﬁeld
owned by the City of New York.

Torn Turf
In contrast, in the case of Gevorgyan v.
City of New York, 2012 N.Y. Misc. LEXIS
109; 2012 NY Slip Op 30050U (January
9, 2012), it was not clear whether the
alleged premise defect was obvious or
hidden. In this case, plaintiff George
Gevorgyan was injured while playing
in an amateur soccer league game on
Field 85, a public playing facility located on Randall's Island. The defendant City of New York (the City) owns
Field 85, and co-defendant New York
City Department of Parks and Recreation (Parks Department) oversees and
manages Field 85.

Gevorgyan testiﬁed that, at approximately 10:20 am on the day of his accident, he was in the process of running
toward an " unmarked " (i.e., open or
undefended) player during the soccer
game when he caught his left foot on a
penalty kick marker that was partially
hidden by torn and rolled up artiﬁcial
turf on Field 85, and he tripped, fell, and
was injured. Gevorgyan also testiﬁed
that he had been a professional soccer
player in Armenia (where he was born),
and that he had previously played on
Field 85 " one or two " times, with the
most recent occasion being about one
week before his accident.
Gevorgyan speciﬁcally described the
condition that he tripped on as a " piece
of turf on the penalty kick mark [that]
was actually raised and rolled. " He also
stated that one of his teammates, whom
he identiﬁed as " Emil, " told him that
he had observed this condition while
playing on Field 85 during the summer
before Gevorgyan's accident, and that
he (i.e., Emil) had complained about it
to the " manager of the ﬁeld. "
Parks Department Supervisor Philip
McAuliffe (McAuliffe) conﬁrmed that
Field 85 is an artiﬁcial turf ﬁeld, and
testiﬁed that the City has hired a contractor-non-party Sprint Turf (Sprint)-
to perform twice-daily cleaning and
maintenance of the ﬁeld during the
morning and afternoon. McAuliffe also
testiﬁed that the procedure followed in
the event that any dangerous conditions were discovered on Field 85 was
for the Parks Department to notify the
" contract manager, " who would, in turn,
order Sprint to repair the condition.
McAuliffe stated that he had observed
contractors laying down new rolls of
artiﬁcial turf on Field 85 at some point
just prior to September 2008. However,
McAuliffe denied that the Parks Deptartment had received any complaints
about a defective condition on Field 85,

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