In Gardner v. Town of Tonawanda , Daniel Gardner was injured during an indoor flag football game when he slipped on a baseball glove used as a sideline marker.
When the Town of Tonawanda , owner of the recreational facility, moved to dismiss the case (on the grounds that Gardner "assumed the risk" of his injuries when he voluntarily participated in the game), the Erie County Supreme Court denied the request.
On appeal, the Appellate Division, Fourth Department, reversed. Quoting prior appellate precedent, the AD4 observed: "As a general rule, 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." (Turcotte v. Fell, 68 NY2d 432).
Because Gardner knew that orange cones and plastic flags were typically used as sideline markers, and that referees had the discretion to substitute those markers with other items, Gardner needed to prove that the risk of tripping on the substituted item was significantly greater than tripping on a cone or flag. As Gardner failed to demonstrate the enhanced danger of a baseball glove's use, the AD4 granted Tonawanda's request and dismissed the case.
Was that a FUMBLE?
To download a copy of the Appellate Division's decision, please use this link: Gardner v. Town of Tonawanda