United States: Win Some, Lose Some: Assumption Of Risk Defense Fails For Sports Complex Owners; Claims Against Dome Seller Dismissed

A plaintiff bringing product liability and premises liability claims against multiple defendants in an effort to cover all bases often leads to different legal defenses among classes of co-defendants and a scattered offense by plaintiff's counsel and plaintiff's liability expert. A recent case out of New York's Appellate Division (Third Department), Dann v. Family Sports Complex, Inc.,1 dealt with this multiplicity of claims and defenses. The case serves as a reminder that even though product liability defendants cannot normally utilize an assumption of risk defense, there are still other – and often more potent – viable defenses in the sports context. The Appellate Division affirmed for the product seller on a stand-by defense: plaintiff's expert just didn't come up with a viable theory. The premises defendants were not as lucky, getting their summary judgment win overturned because of issues of fact surrounding their assumption of risk defense.

More than Turf Burn, but Who is to Blame?

The case involved a recreational league soccer match on one of multiple fields inside an inflatable dome. Plaintiff, an experienced recreational soccer player, slid after a ball headed out of bounds behind the goal line. He crashed into the wall of the dome, approximately 4-5 feet from the line and concealed by an inner vinyl liner. Because the inflated fabric walls were not cushioned he slid, knee first, into a concrete footer that anchored the dome walls. His knee cap shattered. 

Plaintiff brought suit in New York State Court against multiple parties, including the owner and operator of the dome (the "premises defendants") and the seller of the dome. The claims against the premises defendants included negligence and strict product liability claims; the claims against the seller were primarily in product liability, namely design defect. 

Plaintiff's main argument was that the negligent layout of the fields put the out-of-bounds lines too close to the concrete footer, dangerously concealed by the inner vinyl liner. As part of its multiple claims, plaintiff alleged the owner and operator of the dome were negligent in arranging the field in that negligent manner, and/or the seller of the dome was negligent or strictly liable on a design defect theory for designing the dome and fields in such a manner as to put the boundary lines too close to the dangerous concrete footers.

The lower court granted the premises defendants' motions for summary judgment, but the Appellate Division reversed and remanded, allowing the plaintiff's case to proceed against the owner and operator. The Court found that issues of fact remained as to whether or not plaintiff assumed the risk of injury when he slid after the ball. 

In general, voluntary participants in recreational or athletic activities are deemed to consent to "those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation."2 Participants do not, however, "assume 'concealed or unreasonably increased risks' or 'unique and ... dangerous condition[s] over and above the usual dangers that are inherent in the sport.'"3 While the risk of crashing into a wall while playing soccer is inherent in the activity, and proximity of the dome wall to the field was open and obvious, the Court noted that the vinyl liner hanging to the ground along the wall concealing the concrete footer may have served as a concealed, increased risk. 

The premises defendants argued that plaintiff should have noticed the concrete footer where it was exposed at other spots, or noticed how the ball bounced sharply off the liner, indicating its solid state. Plaintiff raised an issue of fact to these points, however. He testified he had never seen the concrete footer and thought the walls were cushioned in some way.  Thus, summary judgment for the premises defendants was overturned.

Victory for the Seller, but not on Assumption of Risk

On the other hand, the Court affirmed the dismissal all the product liability claims.4 The Court affirmed the dismissal of the sports dome seller, Yeadon Fabric Structures, because, quite simply, plaintiff failed to establish a defect case. Plaintiff's primary claim against the seller was basically the same as against the premises defendants – the fields were laid out in a defective manner.  However, the Court found no basis to hold the product seller responsible for the design. It appears that the seller did not provide any sort of guidelines as to how to lay out the fields within the dome or whether or not to provide padding at certain parts of the wall, and likewise the expert did not establish that industry standard required the seller to do so. Moreover, plaintiff's expert failed to provide credible support for this allegation. The expert relied on inapplicable standards (standards for outdoor fields for high school and collegiate soccer, not indoor recreational fields). The Court further ruled that the expert's theory that the layout of the fields constituted a "design defect" was conclusory and "unsupported by any analysis, explanation or citation to a relevant industry standard." 

Consider if the seller had been more involved with the end layout: would the seller have been able to rely on an assumption of risk defense? No. In New York, assumption of risk is not a viable defense to a product liability claim. As the Appellate Division has held before, "[t]o allow a defendant to escape its nondelegable duty to make a safe product by invoking the implied consent of the product user would undermine the policies underlying the doctrine of strict products liability."5 The focus of strict product liability is on the characteristics of the product, not on the conduct of the parties.  The concept weaves well into an assumption of risk mindset. When a player assumes the risk of injury, he or she is assuming appreciable, expected risks, not a hidden defect. The soccer player assumed the risk he would scrape up his leg while sliding across artificial turf, not that a vinyl cover on the nearby wall shrouded an uncushioned concrete wall. 

If under alternate, hypothetical facts, plaintiff's expert found (consistent with applicable industry standards) that a reasonable, safer alternative design employed by other sellers or manufacturers existed, then plaintiff's expert could have credibly opined that the dome itself was defective because, for example, the seller should have provided padding to be placed along the concrete footers. These hypothetical circumstances might have allowed plaintiff to defeat an assumption of risk defense raised by a manufacturer or seller.

A good example comes from a 2012 Supreme Court, Queens County case6 involving a swing set.  In that case, a child plaintiff jumping out of a swing lost the tips of two fingers when they became caught in the links of the swing. Plaintiff alleged the chain created a trap-like condition constituting a design defect. When the manufacturer of the swing tried to rely on an assumption of risk defense, the court did not allow it, and denied summary judgment. Plaintiff was helped there by evidence that the manufacturer offered a safer kind of swing chain but did not expressly offer it to the purchaser of the swing set at issue. Because the child could not have known the swing he was on contained a defect (or that safer swings existed), an assumption of risk defense could not apply.


Plaintiffs' attorneys often bring as many types of claims they can against all possible defendants, with the general thoughts of "the more, the better" and "one of the claims is bound to stick." In the personal injury context, this situation often results in product manufacturers, sellers, and landowners as co-defendants sorting through claims sounding in product liability, premises liability and various flavors of negligence. Defendants in those cases must recognize that they may not be able to use the same defenses – particularly assumption of risk – and their defenses may also at times end up at odds with each other.

In any sports or recreation case where defendants include both premises owners and operators and a product manufacturer or seller, all defenses should be considered because, presumably, plaintiff will have brought all imaginable claims. Even though a product seller or manufacturer may not be able to utilize an assumption of risk defense, it still is worth considering how all the arguments in the case will be shaped by assumption of risk factors and issues of fact related to them. When a defendant seller or manufacturer is strategizing in such a kitchen-sink, multi-defendant case, that seller or manufacturer should not lose focus of traditional product liability defenses even when the case sounds in premises liability. A plaintiff who is steered towards those issues of fact that typically apply to premises defendants may well end up losing focus – or enthusiasm – for more difficult and nuanced product liability claims.


1 Dann v. Family Sports Complex, Inc., et al. (2014 NY Slip Op 08525 (3d Dep't Dec. 4, 2014)).

2 Myers v. Friends of Shenendehowa Crew, Inc., 31 A.D.3d 853, 854 (2006).

3 Martin v. State of New York, 64 A.D.3d 62, 64 (2009), lv denied, 13 N.Y.3d 706 (2009) (quoting Morgan v. State of New York, 90 N.Y.2d 471, 485 (1997)).

4 The Court affirmed dismissal of product liability claims against the premises defendants because they were outside the manufacture, sale and distribution chain. 

5 Lamey v. Foley, 188 A.D.2d 157, 168 (4th Dep't 1993).

6 Faherty v. Birchwood Lodge, Inc., 2012 NY Slip Op 52031 (Sup. Ct. Queens Co. Oct. 24, 2012).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions