Assumption Of Risk In Cricket And Golf

April 15, 2025

Cases involving sports-related injuries were on the decision docket today for the New York Court of Appeals.

Plaintiff is one of the City’s many cricket enthusiasts. As plaintiff detailed in his court submissions, at the time of his injury he was 45 years old and a member of a local team that played in a Queens cricket league. The league held cricket matches at different locations in Brooklyn and Queens between May and October, and plaintiff’s team played between 15 and 17 matches each year. In August 2015, plaintiff’s team played a match at the Lincoln Terrace/Arthur S. Somers Park (“the park”) in Brooklyn. Plaintiff had played cricket one other time in the park at another league game, two years prior, but he did not remember anything of note from that game. The league used two adjacent tennis courts that did not have nets, and were therefore “open park,” as a cricket field. During the game, plaintiff, who was positioned in the outfield near the park’s perimeter fence and at the rear of one of the courts, suffered an injury while running to catch a ball hit by the rival team’s batter. Plaintiff ran towards the right, keeping his eye on the ball, when his “right foot stepped into a hole and [he] stumbled,” crashing into the perimeter fence. The hole was three to four inches deep and six to eight inches wide, and it was nested inside a larger fissure that was around seven feet long, extending “[a]ll between the tennis court and the [surrounding] asphalt.” Some segments of the fissure appeared to be filled in with cement, but others contained holes like the one that caused plaintiff’s fall.

No liability

The Appellate Division correctly held that the risks of tripping and falling while playing on an irregular surface are inherent in the game of cricket (see Turcotte v Fell, 68 NY2d 432, 443 [1986]). There is no evidence in the record that the irregularity in the playing field—the cracked and uneven surface of the tennis court—unreasonably enhanced the ordinary risk of playing cricket on an irregular surface (see Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012]). Defendants were therefore entitled to summary judgment dismissing the complaint on the ground that the primary assumption of risk doctrine precludes liability on the part of defendants.

Dissent of Judge Rivera

According to defendants, players and bystanders who suffer injuries resulting from their alleged failure to maintain sport and recreational facilities within their supervision have no recourse. But “playing at your own risk” does not mean a landowner gets a free pass, completely absolved of any responsibility for failing to maintain their premises in a condition safe for athletic activities. We have not previously “exculpate[d] sporting facility owners of this ordinary type of alleged negligence” (Morgan, 90 NY2d at 488-489), and the majority’s decision to do so now is contrary to established tort principles. There is no social benefit to incentivizing the disintegration of our public spaces. I dissent.

Also out of luck is a golfer injured by a struck golf ball who contended that negligent course design was the cause

At his deposition, Katleski testified that he had been a member of defendant’s club for 18 years and had played the course approximately 100 times prior to the accident, including twice on the day he was struck. Katleski acknowledged that getting hit by a golf ball is an inherent risk of playing golf, and even claimed that on the day of the accident, he remarked to other players that the placement of tee box A was dangerous due to the lack of a clear line of sight between that box and the seventh hole.

The club moved for summary judgment, arguing that Katleski voluntarily assumed the risk of being hit by a golf ball when he elected to participate in the tournament. Supreme Court denied the motion, concluding that Katleski’s opposition, which included an expert affidavit on the dangers of the course layout, raised a triable issue of fact as to whether that risk was unreasonably enhanced, thereby precluding application of the assumption of risk doctrine. The club appealed and the Appellate Division reversed, granting the club’s motion in a split decision (225 AD3d 1030 [3d Dept 2024]). The court emphasized Katleski’s experience as a golfer and awareness of the course topography and layout, which it concluded were “as safe as they appeared to be” (id. at 1038 [internal quotation marks and brackets omitted]). The court further concluded that despite conflicting expert opinion on certain issues, there was no evidence that the course design “exposed plaintiff . . . to a risk over and above the usual dangers that are inherent in the sport of golf” (id. [internal quotation marks omitted]). Katleski appealed to this Court as of right based on the two-justice dissent (see CPLR 5601 [a]), and we now affirm.

A different result in the opinion that considered the two golf injury matters together

On the same day, 160 miles away, Mary Galante was injured shortly after arriving at the Elma Meadows Golf Course in Erie County to play with a group of friends. After parking her car at the facility, Galante walked from the parking lot to the clubhouse, checked out a golf cart at the front desk, and drove the cart back to the parking lot with the intention of retrieving her golf clubs from her car. Unfortunately, as she drove her cart into the parking lot, Galante collided with a car that was exiting, causing her to be ejected onto the pavement.

Galante appeals as of right from an order of the Appellate Division that, over a two-justice dissent, denied her motion to strike the County’s primary assumption of risk defense and granted the County’s cross-motion for summary judgment dismissing the complaint based on that defense (229 AD3d 1311 [4th Dept 2024]). The court rejected Galante’s assertion that assumption of risk did not apply to her simply driving a golf cart in the parking lot, reasoning that although Galante was not actively engaged in golf at the time of the accident, “the accident occurred in a designated recreational venue” (id. at 13121313 [internal quotation marks and ellipsis omitted]). The court further concluded that “the risk of being injured while driving a golf cart is inherent in the sport of golf and that plaintiff was aware of that risk and assumed it” (id. at 1313-1314 [internal quotation marks omitted]). We now reverse.

(Mike Frisch)