Outside Counsel

 The Assumption of Risk doctrine as applied in New York is an incoherent mess. It pretty much exclusively applies to persons engaged in sport or recreational activities, and amounts to a declaration, as a matter of law, that because a plaintiff was aware of the risks inherent in the activity, and voluntarily participated there is no duty owed. As the Court of Appeals says in yesterday's Grady v. Chenango Central Valley School District decision this doctrine, "may not sit comfortably within the landscape of comparative fault". Nevertheless, because New York's comparative fault statute specifically references assumption of risk it is still a part of our tort universe and must be addressed when raised. 

The incoherence of the doctrine is nicely illustrated in Grady, which is actually two cases. In one summary judgment was granted; in the other it was denied. 

The plaintiff in Secky v. New Paltz Central School District was an experienced basketball player. who was injured during a drill in which the players competed to retrieve a rebound. Plaintiff's coach had explained that the boundary lines of the court would not apply during the drill and that only major fouls would be called. At the time of the drill, bleachers stationed near the court were retracted. Plaintiff was injured when, pursuing a loose ball from the top of the key towards the bleachers, another player collided with him, causing plaintiff to fall into the bleachers and sustain an injury to his right shoulder.

The plaintiff in Grady was an experienced baseball player who was injured during a drill involving two coaches hitting balls to players stationed in the infield, with one coach hitting to the third baseman, who would then throw to first base, while another coach hit to the shortstop, who would throw to the second baseman who would, in turn, throw to a player at “short first base,” positioned a few feet from regulation first base. Because the drill required baseballs from two parts of the infield to be thrown to two players in the same area by first base, the coaches had positioned a protective screen, measuring seven by seven, between the regulation first baseman and the short first baseman. Plaintiff, in the group of players assigned to first base, was injured when an errant ball, intended for the short first baseman, bypassed the short first baseman and the protective screen and hit him on the right side of his face, causing serious injury to his eye including significant vision loss.

Can you tell in which case the assumption of risk doctrine was applied? Me neither. What's the takeaway? Plead assumption of risk and take the appeal- you never know, the horse might talk. 

// posted by Bill @ 1:00 PM