Even though the assumption-of-risk defense - which holds that an athlete who steps onto a court or field assumes or accepts all the risks that are inherent in the activity taking place - may be legally well established, there are still a number of issues the courts need to review before determining that the injured athlete actually knew of the risk. For example, some individuals - given their age and experience, or the presence of warnings posted around a facility - might assume a risk of injury when others might not. One example of how the courts examine whether an injured athlete had actual knowledge of the risks associated with an activity is Michael Furnari v City of New York, Respondent [89 A.D.3d 605; 933 N.Y.S.2d 248 (2011)].
Michael Furnari was injured while playing softball on an asphalt multipurpose play area at a Bronx park. After fielding a ground ball, Furnari fell when he planted his foot to make a throw. He claimed that he fell as a result of an uneven playing surface caused by or concealed by a tar patch applied by the city. At the close of Furnari's evidence, the trial court granted the city's motion to dismiss the complaint.
In reviewing the trial court's finding, that Furnari had assumed the risk of his injury because a) the risk was inherent in the sport of softball and b) the defect in the surface was open and obvious, the appeals court ruled that the trial court's determination was in error. First, the appeals court noted that Furnari did not fall in pursuit of the ball - rather, he fell after catching the hit ball on a bounce, when planting his foot to throw. When he planted his foot, Furnari said his left foot got "stuck" in something, and this is what caused him to fall. Therefore, the court concluded that Furnari's accident was caused by unevenness in the "field," which is not inherent in the sport when it is played on a presumably flat asphalt surface. Under these circumstances, the court ruled that it cannot be said as a matter of law that this defect was open and obvious, or that it was a danger inherent in the sport of softball.
With the case now headed back to court, or more likely a settlement, the court's decision reiterates what all recreation and sports administrators should know: You must inspect all playing surfaces before allowing activities to be played on them. If a surface has a defect, fix it. If it cannot be fixed, warn the participants of the danger, move the activity to a safer location or cancel it.
