Super Lawyers
William C. Altreuter

Friday, November 09, 2012

Fridays are Law Days (sometimes) here at Outside Counsel. Today, an important decision from the Court of Appeals on Assumption of Risk. Ladies and Gentlemen, Custodi v. Town of Amherst.

Robin Custodi was rollerblading one day when one of her skates allegedly struck a two-inch height differential where the edge of defendants' driveway met a drainage culvert that ran the length of the street, causing her to fall and fracture her hip. The defendants (the town and the adjoining property owners) moved for summary judgment, arguing that plaintiff assumed the risk of injury by voluntarily engaging in recreational rollerblading, thereby negating their duty of care to her as landowners. Supreme Court granted the motion, the Appellate Division reversed, and the Court of Appeals....

Affirmed. "As a general rule, application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues . In this case, plaintiff was not rollerblading at a rink, a skating park, or in a competition; nor did defendants actively sponsor or promote the activity in question."

Frankly, I think they got this one wrong. Assumption of Risk doctrine in New York has become such a confusing muddle that it may be time for the legislature to step in and straighten it out (and you know how I feel about the New York State Legislature). Suppose, for example, that the plaintiff was a runner, and was running in the Buffalo Marathon. If she tripped and fell on a raised curb, wouldn't it be correct to say that she'd assumed that risk in undertaking the marathon? (It's happened to me-- the race picture is gory, but I by god finished.) Now let's say that the plaintiff was a runner, but instead of participating in a race she was running along a portion of the street that was on the marathon course. She elected to engage in the activity, the risk inherent in that activity would of course be known to her--

Here's how the Court reasoned it:

Since the adoption of CPLR 1411, we have generally restricted the concept of assumption of the risk to particular athletic and recreative activities in recognition that such pursuits have "enormous social value" even while they may "involve significantly heightened risks"  Hence, the continued application of the doctrine "facilitate[s] free and vigorous participation in athletic activities", and fosters these socially beneficial activities by shielding coparticipants, activity sponsors or venue owners from "potentially crushing liability" .
Consistent with this justification, each of our cases applying the doctrine involved a sporting event or recreative activity that was sponsored or otherwise supported by the defendant, or occurred in a designated athletic or recreational venue. In Morgan, for example, we dismissed claims by a bobsledder injured on a boblsed course, and by two students who were injured while attending martial arts classes . Similarly, we applied assumption of the risk to bar claims by plaintiffs who suffered injuries while participating in collegiate baseball ; high school football; recreational basketball on an outdoor court; professional horse racing; speedskating on an enclosed ice rink (see ; and a round of golf at a golf course.
In contrast, in Trupia we recently declined to apply the assumption of the risk doctrine to a child who was injured while sliding down a bannister at school. Based on the tension that exists between assumption of the risk and the dictates of CPLR 1411, we clarified that the doctrine "must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation". We noted that the injury-causing activity at issue in Trupia — horseplay — did not render the school worthy of insulation from a breach of duty claim, as it was "not a case in which 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".
So if I am playing hoops at Delaware Park and break my ankle, I assumed the risk, but if I trip and fall twenty feet away while running on the Ring Road in the Jog for the Jake I didn't? This is madness. As lawyers we are supposed to be able to predict outcomes. Who could have predicted that rollerblading is more like sliding down a bannister than playing pick-up basketball?

| Comments:
I'm trying to get this, but, well, if I go out running and hurt myself because of infrastructure neglect, o.k., that's not really different than just walking down the street and something happens similarly, but if I participate in a city-sanctioned or -sponsored event, then there's an assumption that they will have done everything in their power to ensure the risk to participants of an infrastructure-related injury is mitigated. So it seems to me that running in Delaware Park in a fun run is different than a pick-up game of hoops, but only by enough for the court to have gotten this one right, but maybe I'm not getting the argument?
You have to start with the idea that contributory negligence was once a complete defense in tort. If you were in the wrong at all you could not recover. That doctrine was ultimately rejected (annd not so long ago, either) and now we have a concept called comparative negligence. In some jurisdictions (New York is one) a plaintiff can be up to 99% at fault and still recover, although the damages will be reduced proportionate to the percentage of fault assigned to the plaintiff. (Other jurisdictions will bar recovery if the plaintiff's fault is in excess of 50%). So, what about assumption of risk? If you are aware of the hazards inherent in a particular activity annd undertake that activity anyway are you still owed the duty of ordinary care?

The classic cases in New York are Maddox v City of New York (Elliott Maddox totaled his knee when he stepped on a sprinkler cap in the outfield at Shea) and Turcotte v Fell (Ron Turcotte was thrown from his horse when it clipped another horse due to an over watered track). See what they have in common? The plaintiffs were professional athletes. That distinction might make a workable rule, but how would you apply it in my marathon example, or in a case involving, say, a college hockey player injured on due to a defect in the ice at Madison Square Garden? You don't want to say that professional athletes aren't owed any duty of care, and you want to keep the distinctions rational. The way the Court Appeals has articulated the rule a plaintiff can recover if there is an unreasonably dangerous defect on the basketball court, or on the Ring Road for a 5k, but not if the plaintiff is injured on the Ring Road ten minutes after the race is finished.
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