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Second Department Rules in Plaintiff’s Favor in Golf-Related Assumption of Risk Case   Patricia R. Macisaac, as Administratrix of the Estate of John R. Macisaac, Deceased And Patricia R. Macisaac, Individually v. Nassau County, NYLJ – July 17, 2017

July 31, 2017 • Posted By Joseph A. French • Insurance Coverage


            In 2012, plaintiff-decedent was walking from the 12th hole tee to the 13th hole tee at the Eisenhower Park Golf Course.  While walking he allegedly tripped on a sprinkler valve in a grass-covered hole.  Plaintiff-decedent fell to the ground, and sustained mortal injuries.  Defendant raised a primary assumption of the risk defense in light of the decedent’s wrongful death claims.

             Under the doctrine of primary assumption of risk, “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation”  (Morgan v. State of New York, 90 NY2d 471, 484)”.  This includes risks associated with the construction of the playing surface and any open and obvious condition on it.

             The Court ruled defendant established its prima facie entitled to judgment based on its assumption of risk defense.

             Plaintiff, however, raised the issue of whether the hole was concealed or whether it unreasonably increased the risks inherent in the golf course.  The Second Department ruled the Supreme Court erred in rejecting for its consideration affidavits and photographs.  Plaintiff was not required to identify a notice witness before the Note of Issue was filed.  The disclosure requirements of CPLR §3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action.  (Zellman v. Metropolitan Transp. Auth., 40 AD2d 248, 251; see CPLR §3101)”.  Here, a witness did not possess information material and necessary to the prosecution or defense of the action.  In his affidavit, the witness merely authenticated certain photographs, most of which had been submitted by the decedent with his Notice of Claim prior to his death.

             Based on these discovery rulings, the Court ruled that dismissal was improper given the improper exclusion of the affidavits and photographs.