Suing For Sky Diving Accident May Not Fly

Recently two men died when they collided in midair after deploying their chutes. Can their families sue the sky diving company for the deaths? Probably not successfully. In New York a person who voluntarily participates in a recreational or sporting activity generally consents, by his or her participation, to those injury causing events, conditions and risks which are inherent to the activity. The risks which are considered inherent are those known, apparent, natural and foreseeable consequences of the participation. The skill and experience of the participant will be taken into account when determining if a risk was apparent to that person. Thus cases have been dismissed by the courts where: a baseball player has been injured by stepping in a hole or slipping on a muddy baseball field; where a cheerleader was injured by a fall while practicing a routine; when a bobsled rider went off the end of bobsled run; and where a martial arts student was injured while attempting a kick. Alternatively, the doctrine of assumption of risk did not bar cases where: a tennis player caught his foot on a torn net; where an ice skater was knocked down by an attendant; where a luge participant was injured due to a worker standing on the track; or where a flagman in a motor cross race acted negligently. In each of these cases the courts found that the condition that caused the injury was not an inherent risk of the activity. The doctrine will also not be extended to activities which are not sporting or recreational events. Thus, the Court of Appeals recently held that a child sliding down a banister who was injured in the activity was not barred from suing because such was not the type of event covered under the "Assumption of Risk" doctrine. Plus, it would be unfair to bar the child from bringing a claim for negligent supervision, since the basis of such a claim is that the child is unable to appreciate the risks on his or her own, which is why the supervision is necessary. Getting back to the sky diving incident, an appellate court dismissed a sky diver's case in 2009, ruling in the case of Nutley v. Skydive the Ranch, that "the risk of a parachute failing to open during a tandem sky dive was perfectly obvious." The same result would be likely here. Of course, no pre-determination should be made without knowing all the facts, and having a lawyer evaluate them. - Marc Miner

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