New York Sports Case Law Update: Recent Applications of the Assumption of Risk Defense in Sports Injury Actions
According to the doctrine of primary assumption of risk, a participant in a sport or recreational activity is deemed to consent to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. A trio of recent cases from New York’s Appellate Division, Second Department illustrate when the doctrine of primary assumption of the risk will — and when it will not — provide summary judgment to a defendant in a sports injury action. Recent applications of the doctrine by the Third and Fourth Departments further demonstrate that while the law is well-established, its application varies according to the facts of each case. The analysis in these cases — and in future trial-level cases applying these cases — turns on whether the risk is inherent in and arises out of the nature of the sport, and whether the defendant created a dangerous condition over and above the usual dangers of that sport.
Safon v. Bellmore-Merrick Cent. High Sch. Dist., 2015 N.Y. App. Div. LEXIS 9407, 2015 NY Slip Op 09418 (2d Dept., December 23, 2015).
The plaintiff, a high school lacrosse player, was injured in an after-school practice session when, as he was running toward the goal, his left foot came into contact with the base of the goal, causing him to twist his ankle and fall. The Supreme Court denied both parties’ motions for summary judgment. The Second Department, however, reversed with respect to defendant’s motion for summary judgment and dismissed the complaint. The court held that “defendant established, prima facie, that the plaintiff assumed the risk by voluntarily participating in lacrosse practice where the condition of the goal was not concealed and clearly visible” and “plaintiff failed to raise a triable issue of fact” (id.).
Duffy v. Long Beach City Sch. Dist., 2015 N.Y. App. Div. LEXIS 9082, 2015 NY Slip Op 09065 (2d Dept., December 9, 2015).
The plaintiff, a high school football player, was injured when he catapulted from a blocking sled prior to football practice. The players were unsupervised while they waited for practice to begin and there were no coaches present. The Supreme Court granted summary judgment in favor of the defendant school. The Second Department, however, reversed and denied defendant’s motion, holding that “[t]he doctrine of primary assumption of risk is not applicable to the conduct at issue in this case” (id. at *4). The court explained that “the use of the blocking sled to catapult each other into the air is not the sort of ‘socially valuable voluntary activity’ that the doctrine seeks to encourage” and that “the defendants did not establish that the commonly appreciated risks which are inherent in and arise out of the nature of football generally and flow from such participation on the football team included the risk of sustaining injury after being catapulted through the air by a blocking sled” (id. at *4-5).
Spiteri v. Bisson, 2015 N.Y. App. Div. LEXIS 9106, 2015 NY Slip Op 09089, 20 NYS3d 429 (2d Dept., Dec. 9, 2015).
The plaintiff was injured when struck by a lacrosse ball while she was jogging around a field where a fifth and sixth grade boys’ lacrosse team was warming up. The Supreme Court granted summary judgment in favor of the defendant town and the defendant boy who threw the ball. The Second Department affirmed, holding that the doctrine of primary assumption of the risk doctrine “also applies to spectators or bystanders who place themselves in close proximity to a playing field” (id. at *5). The court further explained that “the defendants established, prima facie, that by entering the fenced-off field where players were warming up for lacrosse practice, and jogging around the perimeter of the field where lacrosse balls were being thrown between the players and into the net, the injured plaintiff assumed the risk of being struck by a lacrosse ball” (id.).
Morrisey v. Haskell, 133 AD3d 949, 2015 N.Y. App. Div. LEXIS 8122 (3d Dept., Nov. 3, 2015).
The plaintiff, an umpire, was injured when defendant threw his bat after hitting an infield pop-up in an adult softball game. The Supreme Court granted defendant’s motion for summary judgment dismissing the complaint and the Third Department affirmed. The court rejected “plaintiffs’ claim that getting hit with a bat is not an inherent risk in a slow pitch, 65-year-old and older softball game” and explained that “[n]either the age of the players nor the velocity of the pitch negates the readily apparent risk of a batter releasing the bat after a swing” (id. at *2). The court found that “defendant met his burden of proving that his conduct was not reckless and that [the umpire’s] injury resulted from an inherent risk of the game” (id. at *3).
Barends v. Town of Cheektowaga, 132 AD3d 1368, 2015 N.Y. App. Div. LEXIS 7465 (4th Dept., Oct. 9, 2015).
The plaintiff, a basketball player, collided with and broke a window located near the edge of the basketball court in a community center owned by the defendant town. The Supreme Court denied the defendant’s motion for summary judgment on the ground that the plaintiff assumed the risks associated with playing basketball. The Fourth Department affirmed and explained that “by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation” but “will not be deemed to have consented to concealed or unreasonably increased risks” (id.). The court held that the “plaintiff raised a triable issue of fact by submitting the affidavit of a licensed architect who opined that the window involved in the accident did not meet industry standards for use in a gymnasium because the glass was not covered by a protective screen, nor was it laminated or tempered to withstand impact by a person . . . Thus, there is a triable issue of fact whether defendant created a dangerous condition over and above the usual dangers that are inherent in the sport of basketball” (id. [internal quotations omitted]).