The doctrine of “assumption of risk” has been in place in New York since the enactment of C.P.L.R. 1411 in 1975. It is applicable only in very particular circumstances where a participant takes part in a sport and/or recreational activity, and the danger inherent in the activity is obvious and necessary. The participant in such an activity must be aware of the risk, appreciate the nature of the risk, and voluntarily assume the risk. Exceptions to these are if the risks are hidden or unreasonably enhanced.
In the recent New York Court of Appeals decision Grady v. Chenango Valley Central School District et.al. (2023 WL 3102723, decided on April 27, 2023), two cases within the context of high school athletics and concerning the doctrine of assumption of risk were reviewed. In Secky, the plaintiff, while playing basketball, was injured during a drill in which teammates competed to retrieve a rebound ball. The plaintiff sustained a serious injury to his shoulder when another player collided with him and caused him to fall into the bleachers. The Court affirmed defendants’ motion for summary judgment (thereby dismissing the case) because it held the plaintiff’s injury was inherent in the sport of basketball and therefore, he assumed the risk of injury. However, in Grady, the plaintiff sustained vision loss in one of his eyes while participating in a complex baseball drill involving multiple balls being thrown and protective screens set up on the field in various locations. In this case, the Court reversed the lower courts’ granting of defendants’ motion for summary judgment – thereby restoring the case – because it held the use of screens and the complexity of the practice/drill created a unique and dangerous condition that rose above the usual inherent dangers in this particular sport and within the context of a high-school athletics program (and as a result, the Court held that one does not assume the risk of same).
Of interest in this decision is the dissent by Justice Rivera, who concurs in Grady but dissents in Secky (a dissent is when a Judge disagrees with the majority decision of the Court and states their own opinion after the decision). Justice Rivera discusses the legislative intent of C.P.L.R. 1411, which “expressly abolished contributory negligence and assumption of risk as absolute defenses,” and that the intent of the legislation was to allow plaintiffs to recover in part for injuries they are partially liable for. Justice Rivera further analyzes the broad interpretation of the definition of “recreational activity,” as well as discusses in detail numerous publications on the abuse and retainment of the assumption of risk doctrine in the court system. Justice Rivera suggests that assumption of risk should be abolished, and such an abolition will not cause the dire consequences to sporting events and activities suggested in prior case analysis, and a comparative fault analysis is sufficient in these cases. Justice Rivera further states that the Court should reverse both Grady and Secky and remit for trial with juries instructed on comparative fault.
Giulia R. Marino, Esq.
