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ELLIOT MADDOX, et al. vs. CITY OF NEW YORK, et al. (21 November 1985) Meyer, J.

FACTS: On June 13, 1975, Plaintiff Elliot Maddox, member of NY Yankees, got injured when he slipped and fell during the 9 th inning of a night game with Chicago White Sox at Shea Stadium. He was fielding a fly ball hit to right centerfield and running to his left when his left foot hit a wet spot and slid but the right foot got stuck in mud resulting to knee injury, forcing him to retire prematurely from professional baseball. Plaintiff and his wife sued the city as owner of Shea Stadium and Metropolitan Baseball Club, Inc. as lessee; and in a separate action, the general contractor, architect and consulting engineer were sued as well. Both actions charge that the drainage system was negligently designed, constructed or maintained. The Appellate Division reversed and dismissed both complaints noting that plaintiff had admitted that the previous nights game had been cancelled due to bad weather and poor field conditions; and that during the game, he had in fact reported the awfully wet with some mud condition to a ground crew member. Since Maddox failed to present evidence an order from a superior after making the condition known, AD held that there is no triable issue of fact as to his assumption of risk. PLAINTIFFS CONTENTION: He assumed the risk of the game and not of the playing field which was in an unreasonably dangerous condition with the risk being enhanced, he had no choice but to continue to play ISSUE: Whether or not plaintiff Maddox is entitled to damages due to the negligence of the defendants HELD: NO. 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 participation in the game in light of that awareness constituted assumption of risk as a matter of law, entitling defendants to summary judgment. There should, therefore, be an affirmance, with costs, of the Appellate Division order. Arbegast v Board of Educ. has noted 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'", 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. In the instant case we deal not with express assumption of risk, but with assumption of risk to be implied from plaintiff's continued participation in the game with the knowledge and appreciation of the risk which his deposition testimony spelled out and which established his implied assumption as a matter of 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". There is no question that the doctrine requires not only knowledge of the injury-causing defect but also appreciation of the resultant risk, 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, 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. 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 the failure to install proper drainage facilities avail plaintiff, for in each of those cases the enhanced risk that resulted was unknown to the particular plaintiff, whereas here the resulting risk (mud) was evident to plaintiff as is shown by his observation of mud and water and his complaints to the grounds keepers concerning the presence of water to the grass line. 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, 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.