Primary Assumption of Risk in Sports in New York

What Is Primary Assumption of Risk in Sports?

Background

By voluntarily participating in a sporting or recreational activity, the plaintiff is deemed to have consented, in advance, “‘to relieve the defendant of an obligation of conduct toward him [or her], and to take his [or her] chances of injury from a known risk arising from what the defendant is to do or leave undone.... (Anand v. Kapoor (2009) 61 A.D.3d 787, 790.)

How to Structure the Motion

“A participant ‘engaging in a sport or recreational activity . . . consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’” (Morgan v. State of New York (1997) 90 N.Y.2d 471, 484; see Turcotte, supra, 68 N.Y.2d 432, 438-440; Youmans v: Maple Ski Ridge, Inc. (2008) 53 A.D.3d 957, 958-959.)

Eliminating “Duty” from Negligence Cause of Action

“[As a result of the doctrine of assumption of risk] the defendant is relieved of legal duty to the plaintiff; and being under no duty, he [or she] cannot be charged with negligence.” (Turcotte v. Fell (1986) 68 N.Y.2d 432, 438 quoting Prosser and Keeton, Torts § 68, at 480-481 [5th ed]).

Defendant's Duty and Comparative Fault

“‘[Assumption of risk in this form is really a principle of no duty.’” (Morgan v. State of New York, 90 NY2d at 485.) As “a measure of the defendant's duty of care [it] survives the enactment of the comparative fault statute.” (Turcotte, supra, 68 N.Y.2d at 439).

Policy Reasoning

When the doctrine is applicable, it acts as a complete bar to liability based upon a defendant's alleged negligence. (See id. at 438-439.) “Particularly relevant ...[is that] the policy underlying this tort rule is intended to facilitate free and vigorous participation in athletic activities.” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 657; accord Morgan, supra, 90 N.Y.2d at 484).

Consistent with that policy, this Court has limited application of the doctrine “to situations in which a plaintiff has been injured ‘while voluntarily participating in a sporting or entertainment activity.’” (Trupia v. Lake George Cent (2009) 62 A.D.3d 67, 68 citing Roe v. Keane Stud Farm (1999) 261 A.D.2d 800, 801 quoting Comeau v Wray (1997) 241 A.D.2d 602, 604.)

Risk Defined

The risks which participants in sporting or recreational activities are deemed to have consented to are those “commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” (Morgan v. State of New York, 90 NY2d at 484).

Risks which fall outside the scope of the doctrine are those of reckless or intentional conduct, or concealed or unreasonably increased risks: (See Morgan v. State of New York (1997) 90 N.Y.2d 471 at 485; Benitez v. New York City Bd. of Educ. (1989) 73 N.Y.2d 650, 658; Turcotte, 68 N.Y.2d at 439.)

The Court’s Decision

Here are some examples of how courts have ruled:

“The Court of Appeals has not, in recent years, considered the doctrine of primary assumption of the risk as it applies to the game of golf. However, the Court observed in Rinaldo v. McGovern that ‘[a]lthough the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game.’” (Anand v. Kapoor (2009) 61 A.D.3d 787, 790 citing Rinaldo v. McGovern (1991) 78 N.Y.2d 729,733.) “Indeed, the risk of being hit by an errant golf ball is little different from the risk of being hit by a misdirected ball at a baseball, basketball, soccer, or tennis game.”(Anand, id.) “The risk of being hit by a misdirected ball is equally inherent in each sport. Thus, application of the doctrine of primary assumption of risk provides an additional basis for affirmance because it compels us to conclude that the plaintiff assumed the risk of being struck by a poorly executed shot.”

“In Passantino v. Board of Educ., the court accepted a distinction between the circumstances of a physical education course, where participation is compulsory, and purely voluntary activity in interscholastic sports. We dismissed the complaint in that case in circumstances remarkably parallel to this case, albeit in a different sport — baseball. Players who voluntarily join in extracurricular interscholastic sports assume the risks to which their roles expose them but not risks which are “unreasonably increased or concealed.” The distinction has continued validity and usefulness in correctly deciding this and like cases.” (Benitez v. N.Y. Bd. of Educ (1989) 73 N.Y.2d 650, 658 citing Passantino v. Board of Educ. (1976) 52 A.D.2d 935, 937, reversed on dissenting opn. at 41 N.Y.2d 1022.)

The principle of primary assumption of risk extends to those risks associated with the construction of a playing field and any open and obvious condition thereon. (Palladino v. Lindenhurst Union Free School (2011) 84 A.D.3d 1194, 1195.)

Documents for Primary Assumption of Risk in Sports in New York

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New York Central Mutual Fire Insurance Company v. Jessica Petrosino, Wheel Ny Llc PROPOSED ADDITIONAL RESPONDENT, Nandar Ei Tun PROPOSED ADDITIONAL RESPONDENT, Accident Fund Insurance Company Of America PROPOSED ADDITIONAL RESPONDENT, Lyft Inc PROPOSED ADDITIONAL RESPONDENT document preview

EXHIBIT(S) - E - CONSENT TO SETTLE LETTER

71 pages

FILED: NASSAU COUNTY CLERK 04/10/2024 12:18 PM INDEX NO. 606249/2024 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 04/10/2024 …

Case Name New York Central Mutual Fire Insurance Company v. Jessica Petrosino, Wheel…