The Court of Appeals Reaffirms That The “Primary Assumption Of The Risk” Doctrine Still Only Applies To Athletic And Recreative Activities
In Grady v. Chenango Val. Cent. School Dist., 2023 NY Slip Op 02142 (Apr. 27, 2023), the Court of appeals recently decided two cases and reaffirmed that the “primary assumption of the risk doctrine” (a doctrine that prevents a plaintiff from recovering damages in a personal injury lawsuit altogether) is still “applicable only in a narrow set of circumstances, in recognition of the fact that ‘athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks.’” Id., quoting, Trupia v. Lake George Cent. School Dist., 14 N.Y.3d 392, 395 (2010).
Here are the two important takeaways from these cases: (1) that the assumption of the risk doctrine is only rarely applicable in personal injury lawsuits in New York; and (2) the facts always and truly matter. If a plaintiff injures him or herself in a recreational or sporting activity for a risk that is inherently involved with participating in that sport or activity (falling off a horse, or an errant baseball throw, for example), then a plaintiff’s action will likely fail. However, if a plaintiff injures him or herself for a risk that is not normal, logical, or inherent in that sport or activity – if the risk is unique, or heightened, or unrelated to that sport or activity – then a plaintiff will likely still be able to recover damages in a personal injury lawsuit.
The Court in Grady further explained that plaintiff’s action will be barred when he or she “is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks” inherent in the relevant athletic or recreational activity. Grady, 2023 NY Slip Op 02142, quoting, Custodi v. Town of Amherst, 20 N.Y.3d 83, 88 (2012). By contrast, a plaintiff is not “deemed to have assumed ‘risks that are concealed or unreasonably enhanced’” by such activities. Grady, 2023 NY Slip Op 02142, quoting, Custodi, 20 N.Y.3d at 88.
Applying these principles, the Court of Appeals decided two different cases. In Secky v. New Paltz Central School District, the Court of Appeals affirmed the dismissal of plaintiff’s complaint where he injured his shoulder during a basketball practice drill where the players were competing to retrieve a rebound. There, plaintiff’s coach explained that the boundary lines of the court would not apply during the drill, and that only major fouls would be called; and the bleachers stationed near the court were retracted. Plaintiff injured himself while pursuing a loose ball towards the bleachers when another player collided with him, causing plaintiff to fall into the bleachers and injure his right shoulder. The complaint was deemed meritless because the Court of Appeals had already held that “the risk of collision [with an open and obvious item near a basketball court]” is an inherent risk in playing basketball. Grady, 2023 NY Slip Op 02142, quoting, Trevett v. City of Little Falls, 6 N.Y.3d 884, 885 (2006).
By contrast, in Grady v. Chenango Valley Central School District, the Court found issues of fact regarding whether plaintiff assumed the risk of his injury while participating in a baseball drill. The drill involved baseballs to be thrown from two parts of the infield to two players in close proximity to each other in the same area at first base. A protective screen was set up to try and protect both players near first base. However, an errant baseball bypassed one of the first baseman and the screen and hit the other first basemen, causing serious injuries. The Court found issues of fact because the drill – which involved two first baseman close to each other and two baseballs being thrown in their direction (of course, there is usually only one baseball and first basemen in a normal baseball game) – “‘was unique and created a dangerous condition over and above the usual dangers that are inherent’ in baseball.” Grady, 2023 NY Slip Op 02142, quoting, Owen v. R.J.S. Safety Equip., Inc., 79 N.Y.2d 967, 970 (1992).
