Assumption Of Risk On The Field Of Play – A 2014 New York Roundup

Assumption of Risk is a simple doctrine. If you head down the ski slope, you assume the risk that you will wipe out - or that another skier will lose control and smack into you. If you play baseball, you assume the risk that you will get hit by a pitch or skin your knee sliding into second.

Despite its simple premise, the doctrine has subtle nuances. The slightest factual distinction can turn a sure plaintiff's win into a defense victory. In 2014, New York courts have ruled for both sides: While some courts give plaintiffs the benefit of the doubt, others show no patience for a plaintiff's complaints of bruises from the field of play.

What is Assumption of Risk?

As a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is considered to have consented to those commonly-appreciated risks that are inherent in, and arise from, participating in the sport.1 This includes injury-causing events, which are the known, apparent, or reasonably foreseeable risks of participation.2

The "voluntary" nature of the participation is plaintiff-specific, assessed by the individual's skill and experience. Thus if the risks are known by the plaintiff, or should have been known by a plaintiff with like skill and experience, plaintiff has consented to them. Likewise, if the risks are perfectly obvious, the plaintiff will be presumed to have been aware of them - getting hit by a batted ball or tripping over a track hurdle, for example. The duty of care of the defendant, in particular a landowner or event operator, is thus qualified by the plaintiff's assumed risks. Yet the defendant always has a duty to protect even a risk-taking plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks3 - for instance, dangerously-positioned or missing mats at a gymnastics facility.

In 2014, New York courts have primarily examined two main areas involving sports-related assumption of risk: (1) dangers on the field itself; and (2) the "experienced" plaintiff.

Dangers on the Field Itself

Four recent cases provide good examples of dangers arising from the field of play itself. Two resulted in the Appellate Division affirming for the defendant on summary judgment. In Perez v. N.Y.C. Dep't of Education4(Second Department), a 17-year-old boy attempting to stifle a fast-break layup on an indoor basketball court jumped into an entrance door of the gymnasium and thrust his arm through a pane of glass on the door...