The deposition testimony of plaintiff, a professional baseball player, that he was aware of the wet and muddy condition of the playing field on the night he was injured and of the particular puddle in which he fell, that he had during the game called the attention of the grounds keepers to the fact that there was puddling on the field and had previously commented a couple of times to the baseball club manager when the field was wet, established his awareness of the defect which caused his injury and of the risk involved. His continued
Plaintiff, a member of the New York Yankees team, was injured on June 13, 1975, when he slipped and fell during the ninth inning of a night game with the Chicago White Sox. The game was played at Shea Stadium because Yankee Stadium was then being renovated. Plaintiff testified that he was playing centerfield and was fielding a fly ball hit to right centerfield, that he was running to his left and as he sought to stop running his left foot hit a wet spot and slid, but his right foot stuck in a mud puddle, as a result of which his right knee buckled. The knee injury required three separate surgical procedures and ultimately forced him to retire prematurely from professional baseball.
Plaintiff and his wife (hereafter collectively referred to as plaintiff) sued the city, as owner of Shea Stadium, and the Metropolitan Baseball Club, Inc., as lessee. In a separate action plaintiff sued the general contractor who built Shea Stadium and the architect and the consulting engineer. Both actions charge that the drainage system was negligently designed, constructed or maintained. Claims over by various defendants were made against the maintenance company for Shea Stadium, the New York Yankees and The American League of Professional Baseball Clubs, as employer of the umpires.
After consolidation of the actions and after depositions had been taken, four of the defendants and cross claim defendants moved for summary judgment dismissing the complaints on the ground that plaintiff had assumed the risk. Special Term denied the motions, holding that it could be inferred that plaintiff in continuing to play was acting under his superior's instructions and that, therefore, there was an issue of fact to be tried. On appeal to the Appellate Division, that court reversed and dismissed both complaints and all claims over. Noting that plaintiff had admitted that the previous night's game had been canceled because of the weather and poor field conditions, that he had during the game in question observed the centerfield to be "awfully wet" with "some mud" and standing water above the grass line, had reported that condition
Before us, plaintiff argues that he assumed the risks of the game, not of the playing field, which was in an unreasonably dangerous condition, that the risk had in any event been enhanced, that he had no choice but to continue to play, and that the evidence did not establish his subjective awareness that his foot could get stuck in the mud. For the reasons that follow we disagree with that analysis and, therefore, affirm.
In Arbegast v Board of Educ. (65 N.Y.2d 161), we noted the common law's distinction between express and implied assumption of risk and held that, notwithstanding the adoption in 1975 of CPLR 1411, the plaintiff in that case having admitted "that she had been informed both of the risk of injury and that `the participants were at their own risk'" (id., at p 164), her participation in the games there involved constituted an express agreement on her part to assume the risk, entitling defendant to the direction of a verdict (id., at p 162).
Plaintiff suggests that our adoption in Basso v Miller (40 N.Y.2d 233) of the single standard of reasonable care somehow transmogrified assumption of the risk into a defense that cannot be asserted until defendants (who, as movants for summary judgment, bear the burden of establishing prima facie their right to judgment) have established their own exercise of reasonable care. The suggestion finds no support in
No more helpful to plaintiff is our abandonment in Micallef v Miehle Co. (39 N.Y.2d 376, 382-385) of the patent danger doctrine declared in Campo v Scofield (301 N.Y. 468). In the first place, Campo denied recovery "if the dangerous character of the product can be readily seen, irrespective of whether the injured user or consumer actually perceived the danger" (39 NY2d, at p 384). More importantly, Micallef was based on the greater expertise and superior position of a manufacturer to recognize and cure defects over the user of his product injured by its defect, a consideration which, as the Appellate Division pointed out (108 AD2d, at p 45), can hardly be said to be present in relation to a professional athlete, who is both more highly trained and in a better bargaining position than persons injured by consumer products (see also, Turcotte v Fell, 123 Misc.2d 877). Notwithstanding that this is a pre-1975 case in which we would be at liberty to modify the common-law rules of assumption of the risk, just as Campo's "open and obvious" rule was modified, we decline to take that step, perceiving no reasonable basis for doing so.
Nor does the case law sustain plaintiff's efforts to avert dismissal of his action on the basis of assumption of the risk law. The risks of a game which must be played upon a field include the risks involved in the construction of the field, as has been held many times before. That the assumption doctrine "applies to any facet of the activity inherent in it and to any open and obvious condition of the place where it is carried on" (Diderou v Pinecrest Dunes, 34 A.D.2d 672, 673) is borne out not only by that case but also by Hoffman v Silbert (19 N.Y.2d 661, affg 24 A.D.2d 493 [window in close proximity to
There is no question that the doctrine requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk (McEvoy v City of New York, 292 N.Y. 654, affg 266 App Div 445; Larson v Nassau Elec. R. R. Co., 223 N.Y. 14), but awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff (Dillard v Little League Baseball, 55 A.D.2d 477, 480), and in that assessment a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport (see, Heldman v Uniroyal, Inc., 53 Ohio App.2d 21, 36, 371 N.E.2d 557, 567; Turcotte v Fell, supra). In that context plaintiff's effort to separate the wetness of the field, which he testified was above the grass line, from the mud beneath it in which his foot became lodged must be rejected for not only was he aware that there was "some mud" in the centerfield area, but also it is a matter of common experience that water of sufficient depth to cover grass may result in the earth beneath being turned to mud (Benjamin v Deffet Rentals, 66 Ohio St.2d 86, 91, 419 N.E.2d 883, 887, holding denial of summary judgment improper because "[i]t is common knowledge, however, that such a [plastic diving board] surface can be slippery, especially when it becomes wet"; Restatement [Second] of Torts § 496D comment d; Prosser and Keeton, Torts § 68, at 488 [5th ed]). We do not deal here, as we did in Schmerz v Salon (supra), with a hole in the playing field hidden by grass, but with water, indicative of the presence of mud, the danger of which plaintiff was sufficiently aware to complain to the grounds keepers. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results. Nor do the enhancement cases to which plaintiff refers in arguing that the risk of water on the field was enhanced by
Finally, although the assumption of risk to be implied from participation in a sport with awareness of the risk is generally a question of fact for a jury (Stevens v Central School Dist. No. 1, supra; Jackson v Livingston Country Club, supra), dismissal of a complaint as a matter of law is warranted when on the evidentiary materials before the court no fact issue remains for decision by the trier of fact (Hoffman v Silbert, 19 N.Y.2d 661, supra; Luftig v Steinhorn, 16 N.Y.2d 568, supra; Lobsenz v Rubinstein, 283 N.Y. 600, supra; Dillard v Little League Baseball, 55 A.D.2d 477, supra; Maltz v Board of Educ., 282 App Div 888, affg 32 Misc.2d 492; Benjamin v Deffet Rentals, supra). We are satisfied that this is such a case for, on the basis of those parts of plaintiff's deposition above set forth, the defense of assumption of risk was clearly established, and plaintiff has not, as it was his burden to do (Zuckerman v City of New York, 49 N.Y.2d 557, 562) brought himself within the rule of cases such as Broderick v Cauldwell-Wingate Co. (301 N.Y. 182) by presenting evidence in admissible form that he had no choice in the matter but to obey a superior's direction to continue notwithstanding the danger. Indeed, nothing in plaintiff's affidavit or in so much of his deposition as is contained in the record suggests that he acted under such an order or compulsion, nor can we agree, notwithstanding the dictum in Porter v Avlis Contr. Corp. (57 A.D.2d 222, 225)
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.