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Vol. 10 - Issue 4

June 17, 2021


Cicadas And Assumption Of The Risk


The news has been abuzz about the billions of cicadas that are emerging from the ground after their 17-year subterranean existence.  They will bring with them a thunderous sound.  Reports are that the insects will appear in about 15 states, principally on the East Coast.  [Meanwhile, much to my dismay, I have not seen a single one yet.] Credit their loud noise to the mating call of males.  So the story goes, the cicadas will do their thing, die shortly thereafter and their offspring will begin their own 17-year get-away.   

Here at Coverage Opinions, where I’ll stop at nothing to bring you interesting legal tidbits and fascinating and hard to believe judicial decisions, it turns out that cicadas were once front and center before the New York Appellate Division.  I kid you not.  You can look it up: Petriano v. Southgate at Bar Harbour Home Owners Association, 640 N.Y.S.2d 614 (App. Div. 1996 (2nd Dept.)).

In Petriano, the New York appeals court concluded that Josephine Petriano could not recover damages from Southgate at Bar Harbour Home Owners Association for injuries that she sustained, while playing tennis, when she slipped and fell on dead cicadas that had collected on the court. 

The problem for Ms. Petriano was that she admitted in her deposition to having observed the dead cicadas on the court before starting to play.  This was all the Appellate Division needed for game, set, match for the homeowner’s association: “By electing to play tennis on a court known to contain dead cicada bugs, the injured plaintiff assumed the risk inherent in the game, thereby limiting the defendant’s duty to make the conditions as safe as they appeared to be.”


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