2. Plaintiff Failed to Establish Actual or Constructive Knowledge
This Court further finds that, apart from the trivial nature of the defect, plaintiff has failed to establish constructive or actual notice of the defect on the part of defendant. A defendant has actual notice of a defect if it created the defect or gained actual knowledge of the defect's existence. See McHale v. Westcott, 893 F. Supp. 143, 148-49 (N.D.N.Y. 1995) (citing Torri v. Big V of Kingston, Inc., 147 A.D.2d 743, 744, 537 N.Y.S.2d 629, 631 (3d Dep't. 1989)). A defendant has constructive notice of a defect if the defect is "visible and apparent" and "in existence for a sufficient period of time before the accident so that the defendant could discover and remedy it." Id. (citing Hammond-Warner v. United States, 797 F. Supp. at 211).
Here, not only did the government witnesses credibly testify that the defect was trivial and not visible or apparent, but indeed, plaintiff's own testimony in this regard is conflicting. At one point during the trial, plaintiff testified that he was only aware of the crack, but not the hole. However, his deposition testimony suggests that he had noticed both the hole and the crack on a prior occasion. In any event, plaintiff never reported either condition to the Park Service department, nor did anyone discover or report any problem with the basketball court during the regular service inspections conducted by the Park maintenance crew. Indeed, this Court credits the testimony of both Mr. Roessler and Mr. Collier that they did not observe any defect on the basketball court and that no requests for maintenance were issued with respect to this particular basketball court. This Court therefore finds that plaintiff has failed to establish constructive or actual notice of the defect on the part of defendant. See McHale v. Westcott, 893 F. Supp. at 148-49 (holding that plaintiff had failed to establish defendant's notice of allegedly defective stairs, where the stairs were unmodified by the defendant, the defendant conducted annual inspections but never discovered the defect, no complaints were ever filed about the stairs prior to plaintiff s injury, and plaintiff failed to notice the defect despite using the stairs once a week for two years).
3. Plaintiff Assumed The Risk of Injury by Playing Basketball
Apart from plaintiff's failure to establish all of the necessary elements of the offense, this Court holds that, in any event, plaintiff assumed the foreseeable risk of injury by playing basketball on this court. It is well-settled that individuals who voluntarily engage in sporting activities "'have consented by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation.'" Pascucci v. Town of Oyster Bay, 186 A.D.2d 725, 726, 588 N.Y.S.2d 663, 664 (2d Dep't. 1992) (quoting Turcotte v. Fell, 68 N.Y.2d 432, 439, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986)). Indeed, plaintiff's identity and purpose for being at the location are factors that can be considered in determining what reasonable care would be under the circumstances. Paulison v. Suffolk County, 775 F. Supp. 50, 53 (E.D.N.Y. 1991). If the risks of the activity are obvious and fully comprehended, then plaintiff has consented to them and recovery is barred. Pascucci v. Town of Oyster Bay, 186 A.D.2d at 726, 588 N.Y.S.2d at 684.
Here, the evidence produced at trial established that plaintiff had played basketball in the Park on numerous occasions prior to the date of the accident, including games on this very basketball court on over ten prior occasions. Not only was he aware that the surface of the court was not the equivalent of a smooth and even indoor basketball court, but he was, by his own admission, aware of at least the crack in the surface of the court. That assumption of risk on his part bars recovery. See Reilly v. Long Island Junior Soccer League, 216 A.D.2d 281, 282, 627 N.Y.S.2d 784, 785 (2d Dep't. 1995) (denying liability for injuries sustained on a muddy soccer field, where plaintiff was an experienced soccer player who had played in poor weather and on the very same field on many prior occasions); Gonzalez v. City of New York, 203 A.D.2d 421, 422, 610 N.Y.S.2d 569, 570 (2d Dep't. 1994) (denying recovery where plaintiff acknowledged that he had seen the defect prior to the accident). In this case, the evidence also shows that plaintiff voluntarily decided to play basketball on defendant's court. It is well-established that defendant was only required to "exercise reasonable care under the circumstances to prevent injury to those who engaged in the [basket] ball game." Scaduto v. State of New York, 86 A.D.2d 682, 683, 446 N.Y.S.2d 529, 530 (3d Dep't) (citing Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976) and Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794 (1976)), aff'd, 56 N.Y.2d 762, 437 N.E.2d 281, 452 N.Y.S.2d 21 N.Y.S.2d (1982). As in Scaduto, plaintiff assumed the dangers of the game, which here included the potential for landing awkwardly when jumping to shoot the ball. Like the state in that case, the United States was "not required to provide a terrain that was perfectly level." Id. at 683, 446 N.Y.S.2d at 530.
In conclusion, this Court holds, based on the preponderance of the evidence, that plaintiff has failed to establish negligence on the part of the defendant and orders judgment in favor of the defendant.
Dated: Brooklyn, New York
March 19, 1997
Cheryl L. Pollak
United States Magistrate Judge
Eastern District of New York