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Assumption of Risk and It’s Impact on Lawsuits

materials for a wide range of sports laid out.

An injured person in New York can sue for damages when another person or entity negligently causes the damages. There are exceptions to the rule however, and one such exception is based on a doctrine called “Assumption of Risk.”  The Assumption of Risk doctrine dates back to 1929 when New York’s highest court, the Court of Appeals, held that “one who takes part in…a sport accepts the dangers that inhere in it so far as they are obvious and necessary.”

If the Assumption of Risk theory applies to the case it will result in a total bar to recovery by the injured party, even if there was negligence on the part of the defendant. In effect, when a Court applies the Assumption of Risk theory to the case, the Court is saying that the defendant had no duty to protect the plaintiff. Thus, a plaintiff’s case will be dismissed regardless of any fault or negligence on the part of the defendant.

The doctrine of Assumption of Risk has been limited to sports and recreational activities. For example, in the 2010 case of Trupia, the Court refused to apply the doctrine to a case in which a child was injured while involved in horseplay on a banister. In Trupia, the Court held that the application of the doctrine would have particularly unfortunate consequences. Little would remain of an educational institution’s obligation to adequately supervise the child in its charge if school children could generally be deemed to have consented in advance to risks of their misconduct.

In the 2012 Custodi case, the Court also narrowed the scope of potential risks assumed by plaintiffs such that “participants are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced.” The Court also stated that a defendant has “a duty to exercise care to make the conditions as safe as they appear to be.”

On April 27, 2023 the Court of Appeals decided two cases, Grady and Secky, involving the Assumption of Risk Doctrine. The Court issued three separate decisions. Four judges agreed to apply the Assumption of Risk doctrine to one of the two cases. One judge wanted to apply the doctrine to both cases. One judge wanted to abolish the Assumption of Risk doctrine altogether, as being difficult to harmonize with the rule, put into law in 1975, that comparative fault or negligence is to apply to all cases.

Both Grady and Secky were high school athletes injured during practice drills, which used different rules from the normal game. Grady involved a baseball drill where coaches simultaneously hit balls to the third basemen and shortstop. The third baseman would throw the ball directly to the first baseman, whereas the shortstop would throw the ball to the second baseman who would then throw the ball to a “short first baseman.” Grady, playing first base was injured when the second baseman through an errant ball meant for the “short first baseman,” which struck Grady in the face and causing a loss of vision. The majority of the Court allowed Grady’s case to proceed to trial because the drill was “unique and created a dangerous condition over and above the usual dangers that are inherent” in baseball.”

Secky’s case was dismissed. Secky was injured in a basketball rebounding drill, where the coaches announced that boundary lines of the court would not apply during the drill, and that only major fouls would be called. At the time of the drill, bleachers stationed near the court were retracted. Secky was injured when, pursuing a loose ball from the top of the key towards the bleachers, another player collided with him, causing Secky to fall into the bleachers and sustain an injury to his right shoulder. The Court dismissed Secky’s claim, holding that “The drill assigned to plaintiff and his teammates did not unreasonably increase the risk of injury beyond that inherent in the sport of basketball.”

In summary, anytime an athlete is injured while playing a sport or recreational activity, the Assumption of Risk Doctrine may be applied. Each case must be evaluated on its own merits. While in many cases it will be impossible to predict how the Courts will rule, an experienced personal injury lawyer is in the best position to make an early evaluation on the merits of a potential injury case arising out of a sport or recreational activity.