ASSUMPTION OF RISK
Today we have yet another cautionary tale from the annals of “I got hurt, so I need someone to sue.”
Dan was a healthy, 26-year old recreational-football-league kind of guy. He was playing flag football with some buddies in the Dome Football League, using an indoor facility owned by the Town of Tonawanda. Of course, you need to mark the boundaries of the football field, and — necessity being the mother of invention — someone used a softball glove as a marker.
Dan stepped on the glove during a moment of football derring-do, and he was injured. So of course, he threw a yellow hankie at the Football League and the Town. The Town and League threw their own red flags, asking the booth, that is to say, the trial court, to review and throw out the case. The trial court refused to do so.
The appellate court, however, penalized Dan 15 yards and loss of down. When someone engages in an injury-prone event, like flag football, he or she (usually “he” in the case of football, but there are exceptions), consents to the reasonably foreseeable consequences of the activity. There are always sideline markers, the Court observed, and Dan didn’t show that using a softball mitt was created a danger any greater than using the usual cones or plastic flags employed by the League.
So what does this have to do with trees? When people engage in outdoor activities in which they come in contact with trees, roots, stumps and holes in the ground, it’s always a fair question whether they assumed the risk when they elected to ski, mountain bike, run a 5k or whatever they were doing at the time.
If you’re a Dan (or a Danielle), be prepared to prove that the hazard you confronted was something over and above what you could reasonably expect to encounter in the activity. If you’re playing football, expect to be hurt. You’ll rarely be disappointed.
Gardner v. Town Of Tonawanda, 850 N.Y.S.2d 730 (N.Y.A.D. 4 Dept., 2008). Dan Gardner, a 26-year-old flag football enthusiast, slipped and fell on a baseball glove that he and his buddies were using as a sideline marker during a recreational indoor flag football game organized by the Dome Football League and played in a facility owned by the Town of Tonawanda. Dan was experienced in playing recreational flag football games on the indoor artificial turf field and he knew the sidelines of the field were marked with orange plastic cones and that the referee had the discretion to use other types of markers on the sidelines as well. Dan said he was unaware that a baseball glove was being used as a sideline marker, but he didn’t have any evidence supporting his contention that the risk of slipping on the baseball glove was greater than the risk of slipping or tripping on the cones or plastic flags usually used as sideline markers. But that didn’t stop him from suing the Football League and the Town. The defendants moved for summary judgment, but the trial court denied it.
Maybe so, but the big crayon assumed the risk.
Held: Summary judgment was granted to the Town, and the case was dismissed. The Court concluded that Dan assumed the risk of the injuries that he sustained because the use of the baseball glove as a sideline marker didn’t create a dangerous condition over and above the usual dangers that are inherent in recreational flag football.
The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries and applies to voluntary participation in sporting activities. As a general rule, the Court said, participants properly may be held to have consented by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation. Such injury-causing events include the risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.
– Tom Root
Tree and Neighbor Law For Homeowners and Professionals 