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Wednesday, April 07, 2010
New York High Court Limits Primary Assumption of Risk to Athletic Participation

Yesterday, the New York Court of Appeals (the state's highest court) published Trupia v. Lake George Central School District. The case involved a claim that of negligent supervision; plaintiff, a student, fell off a banister and sued his school district. The defense responded with primary assumption of risk, a doctrine that has continued to plague plaintiffs in negligence cases, particularly involving injuries sustained during athletic participation.

The Court narrowed the availability of primary assumption of risk significantly, suggesting that, in the aftermath of the state's move to comparative fault, it should only be available in athletic injury claims. According to the Court,

The doctrine of assumption of risk does not, and cannot, sit comfortably with comparative causation. In the end, its retention is most persuasively justified not on the ground of doctrinal or practical compatibility, but simply for its utility in "facilitat[ing] free and vigorous participation in athletic activities" ...

We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation...

No suitably compelling policy justification has been advanced to permit an assertion of assumption of risk in the present circumstances. The injury-producing activity here at issue, referred to by the parties as "horseplay," is not one that recommends itself as worthy of protection, particularly not in its "free and vigorous" incarnation...

This decision brings New York law in line with developments in other jurisdictions limiting the availability of primary assumption of risk in non-contact sport situations. See my post, "Is Potato Sack Racing a Contact Sport?", for further discussion.


The concurring opinion by Judge Smith makes a number of interesting points that I agree with. The court did not need to expand its opinion beyond the narrow one that Judge Smith mentions. However, I do find the following statement in paragraph four to be interesting: "The doctrine, then, is thought of as limiting duty through consent - indeed, it has been described a 'principle of no duty' rather than an absolute defense based upon a plaintiff's culpable conduct." This is how I feel foul ball cases should be handled. There is no duty for the stadium owner or operator to provide protect from foul balls beyond the typical screened area around home plate.

Here the plaintiff was sliding down a bannister. I am not sure if that is an athletic event although it probably is recreation.

Blogger Ed Edmonds -- 4/07/2010 5:05 PM  

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