Super Lawyers
William C. Altreuter

Friday, April 28, 2023

 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. 


Tuesday, April 11, 2023

 I miss liner notes. I am up to roughly 1957 in Aidan Levy's Sonny Rollins bio and I'm forming an impression of Rollins that is surprising me. If you are familiar with Rollins at all this is the period that you are probably best aware of, and most people who are into this sort of thing will have a copy of A Night at the Village Vanguard on their shelves. It's a pretty great set, but it's also true that Rollins couldn't keep a band together between the matinee and the evening set, and this seems to have been a consistent pattern. Unlike Miles Davis, who understood that a working band was the way to greatness, Rollins is all about finding cats to play behind his improvisations. This, I think, gets to the heart of a longstanding discussion about jazz: is it composed, is it improvised, or is it both? In the period leading up to 1957 Rollins was playing with Clifford Brown and Max Roach (along with Richie Powell and George Morrow), as well as with Thelonious Monk and on those sides everyone takes solos. After 1957/58 Rollins doesn't record as a sideman really, and seems to only rarely record with peers, and I think there is a drop-off in quality, no matter his wood shedding on the Williamsburg Bridge. People tell me that he was a very Zen cat, and he comes off like that in interviews, but I'm beginning to think that there's a kind of arrogance there, and that the reason that, for example, John Coltrane's sound kept evolving was that Trane, and Miles, and a lot of Rollins' other contemporaries made a point of playing and recording with musicians that would push them. It also seems to me that this may be part of the reason Rollins was unhappy with his recordings (at least according to Eric Nisenson's Open Sky. I've spent a lot of time over the last year listening to Rollins, and I don't regret it. I do regret that I never saw him perform.

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