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Personal Injury and Assumption of Risk

New York Assumption of Risk Law

New York has long abolished “assumption of risk” as a complete bar to an action to recover damages for personal injury or wrongful death. The Court of Appeals held that the “[r]ight to apportionment of liability or to full indemnity, then, as among parties involved together in causing damage by negligence, should rest on relative responsibility and to be determined on the facts.” Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382 (1972).

In 1975, following Dole, the Legislature abolished contributory negligence and assumption of risk as absolute defenses. CPLR § 1411 now provides as follows:

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.

As such, damages for personal injuries should only be reduced in proportion to the culpable conduct attributable to the claimant for his part in causing the accident.

Notwithstanding, the doctrine of assumption of risk has survived in the limited context of athletic activities. The Court of Appeals noted that the retention of the doctrine is justified for its utility in “facilitating free and vigorous participation in athletic activities.” Trupia ex rel. Trupia v. Lake George Central School Dist., 14 N.Y.3d 392 (2010).

In Trupia, the Court of Appeals in recognizing the importance of the applying the doctrine to only these limited circumstances stated the following:

We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation that the Legislature has deemed applicable to any action to recover damages for personal injury, injury to property, or wrongful death.

Thus, in Trupia, the Court declined to extend the doctrine to circumstances that can be described as traditional “horseplay,” such as when a boy was injured sliding down a banister at school. Here the Court noted that:

Little would remain of an educational institution’s obligation adequately to supervise the children in its charge if school children could generally be deemed to have consented in advance to risks of their misconduct. Children often act impulsively or without good judgment-that is part of being a child; they do not thereby consent to assume the consequently arising dangers, and it would not be a prudent rule of law that would broadly permit the conclusion that they had done so. If the infant plaintiffs harm is attributable in some measure to his own conduct, and not to negligence on defendants’ part, that would be appropriately taken account of within a comparative fault allocation; it is not a predicate upon which an assumption of risk should be permitted to be applied.

In keeping the doctrine proscribed, the Court reaffirmed that the doctrine should only be applied where the threshold condition has been met, i.e. where the “defendant solely by reason of having sponsored or otherwise supported some risk-laden but socially valuable voluntary activity has been called to account in damages.” Then the doctrine’s application will also “depend upon whether, under the particular circumstances, the plaintiff may be said to have freely and knowingly consented to assume the risks of a qualifying activity.”

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