Roska v. Town of Cheektowaga

—Order insofar as appealed from reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Plaintiff fractured her ankle during a game of softball when the base into which she was sliding became detached and her ankle hit a metal spike to which the base had been attached. She commenced this action against defendant, the owner of the park where the accident occurred. Defendant moved for summary judgment, arguing that it was not negligent in its maintenance of the base and that plaintiff assumed the risk of her injuries. Supreme Court concluded that an issue of fact exists whether plaintiff assumed the risk of her injuries, but granted defen [985] dant’s motion for summary judgment on the ground that plaintiff failed to prove that defendant was negligent. That was error. Although plaintiff will bear the burden at trial of proving that defendant created the allegedly dangerous condition or had actual or constructive notice of it, defendant on its motion for summary judgment bore the burden of establishing its entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Harper v Austin, 242 AD2d 927). Because defendant failed to meet its burden, there is no need to consider the adequacy of plaintiffs submissions in opposition to the motion (see, Harper v Austin, supra). Nor did defendant prove that plaintiff assumed the risk of her injury as a matter of law. There is an issue of fact whether the risk of being injured by a metal spike, exposed when a base became detached, is a risk that is inherent in the game of softball (see, Siegel v City of New York, 90 NY2d 471, 488; Stackwick v Young Men’s Christian Assn., 242 AD2d 878). We agree with the dissent that participants in the game of softball assume the risk of injury typically resulting from sliding into base (see, e.g., Rosenblatt v Kahn, 245 AD2d 438 [plaintiff, who was playing first base, injured when player sliding into base collided with him]; Swan v Town of Grand Is., 234 AD2d 934 [softball player injured when her foot got stuck in wet playing field while she was sliding into base]; Castello v County of Nassau, 223 AD2d 571 [plaintiff injured when he slid head-first into home plate and jammed his shoulder against a protruding corner of the base]; Totino v Nassau County Council of Boy Scouts, 213 AD2d 710, lv denied 86 NY2d 708 [softball player, who was playing a base, injured when runner slid into base and collided with him]). Upon our review of the record, we cannot accept defendant’s assertion, accepted by the dissent, that the risk of being injured by a metal spike protruding from the ground is, as a matter of law, a risk inherent in sliding into base during a game of softball. Defendant supports that assertion only with deposition testimony of plaintiff wherein she indicates knowledge that bases are often fastened into the ground with straps tied down to metal spikes, that bases sometimes come up, and that she had observed a base come out of the ground, spike and all, on the day of her accident. Plaintiff did not admit, however, that she had seen a base become detached leaving the metal spike protruding from the ground or that she was aware of the possibility of such an event occurring. Nor did defendant offer an affidavit from an expert to demonstrate that such an occurrence was a risk inherent in the game of softball. [986] Even if we assume, arguendo, that the evidence submitted by defendant was sufficient to sustain its burden of demonstrating entitlement to judgment as a matter of law, plaintiff submitted an affidavit in opposition to the motion wherein she stated that a base that is properly secured “does not become unattached naturally and as a common incident” and that she did not perceive any risk that the base would become detached from the ground and cause a hazardous condition. That evidence raised a triable issue of fact concerning whether plaintiff had assumed the risk of her injuries. All concur except Wisner and Balio, JJ., who dissent and vote to affirm in the following Memorandum.