January 2013 - Parks & Recreation - 24

LAW REVIEW

ASSUMPTION RISK FOR OBSERVABLE BALLFIELD DEFEC TS

and that Sprint had performed any repair work there between September and
November of 2008. McAuliffe also stated that he performed daily inspections
of Field 85 and denied ever having observed any problems with the turf during the time in question. He admitted,
however, that he did not speciﬁcally
inspect the turf near the penalty kick
markers at the time that he inspected
and signed off on the turf installation
job in September 2008.
Gevorgyan ﬁled a lawsuit, claiming
the City was liable for negligence. In
response, the City raised the assumption of risk defense as a basis for dismissing the lawsuit on the City's motion
for summary judgment. In so doing,
the City argued that Gevorgyan " assumed the risks inherent in his participation in the activity of soccer. " The

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court described the assumption of risk
defense as follows:
A voluntary participant in a
sporting 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.

Moreover, the court acknowledged
that assumption of risk could include
" those risks associated with the construction of the playing ﬁeld and any
open and obvious condition thereon " :
If 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.

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Gevorgyan, however, contended assumption of risk did not apply because
" the dangerous/defective condition on
a playing ﬁeld was not 'open and obvious,' but hidden. " Speciﬁcally, Gevorgyan testiﬁed in his deposition that " the
defect was hidden due to the fact that
[I] only saw the strip of turf when it was
in the 'down' position. " He further testiﬁed that he " never saw the strip in the
'up' position, " and that " when the strip
is in the 'down' position, it is completely
hidden. " As a result, under the circumstances of this particular case, Gevorgyan argued that a trial was necessary
for a jury to determine " whether or not
a dangerous/defective condition on a
playing ﬁeld was hidden, " precluding
the City's assumption of risk defense.
If reasonable minds could differ about
whether the alleged defect was obvious
or hidden, effectively dismissing Gevorgyan's lawsuit by granting summary
judgment to the City would be improper.
In response, the City contended that
it was " irrelevant whether the penalty kick marker was in the up or down
position since it was readily apparent,
noticeable and obvious. " Moreover, the
City claimed Gevorgyan had " admitted that he observed the penalty kick
marker prior to his fall. "
The court agreed with Gevorgyan.
In the opinion of the court, there was
" an issue of contested fact as to the liability of the City and the Parks Department with respect to the installation
and maintenance of Field 85. " Based
upon pretrial testimony and accompanying photographs of the penalty
kick mark, the court found that a jury
could " reasonably infer that the penalty kick mark was improperly glued
down, constituting a dangerous condition that is not an inherent risk of
playing on the ﬁeld. "
In so doing, the court noted that
a " torn or allegedly damaged or

January 2013 - Parks & Recreation

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