City May Be Liable for Uneven Softball Surface

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.

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