COURT OF APPEALS AFFIRMS LIMITED AVAILABILITY OF ASSUMPTION OF RISK DEFENSE AS COMPLETE BAR TO RECOVERY

Trupia v. Lake George Central School District, 14 NY3d 392 (2010)

Last spring, the Court of Appeals clarified the limited availability under New York law of the doctrine of assumption of risk as a complete defense to claims of negligence in suits involving personal injuries.  The underlying facts of the case were straightforward:  a child was injured during a summer program administered by the defendant school district when he slid down and fell off of a banister, and was seriously injured.  The case came to the court on appeal from the Appellate Division, Third Department, which had ruled that the defendant school district should not be allowed to amend its complaint to add a defense of assumption of risk.

Historically, the defenses of contributory negligence and assumption of risk could completely bar a plaintiff’s recovery for personal injuries.  In 1975, however, New York adopted CPLR 1411, which abolished these defenses as complete bars to recovery and put in place a system of comparative fault, where “[i]n any action to recover damages for personal injury, injury to property, or wrongful death . . . 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.”

Despite the statutory change, however, the doctrine of assumption of risk continued to play a role in New York Law.  In particular, numerous cases over the years have held that the participants in many “athletic and recreative activities,” i.e., sports, are deemed to assume the risks of engaging in those activities such that they cannot recover for foreseeable injuries sustained from such participation.  At issue in Trupia was whether the continued viability of the assumption of risk defense should be limited to “athletic and recreative activities”, or whether, as some lower courts had held, it could be asserted in a broader context on the theory that “by freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk.”  Trupia (citations omitted).

The Court of Appeals rejected any broader application of assumption of risk beyond those cases involving “athletic and recreative activities.”  The Court found that society has deemed vigorous participation in athletic and recreative activities of sufficient value and importance that liability for injuries sustained by participants in these activities must have limits in order to encourage such participation.  Conversely, there is no societal consensus that “horseplay,” such as was involved in Trupia, needs special protection or encouragement.  Furthermore, the Court found, allowing a general application of the doctrine of assumption of risk to the injuries sustained by children would completely negate the duty of supervision which entities such as the defendant school district owe to children.  As the Court noted, if a child’s own conduct contributed in some measure to his injuries, “that would be appropriately taken into account of within a comparative fault allocation; it is not a predicate upon which an assumption of risk should be permitted to be applied.”

Trupia refrained from defining “athletic and recreative activities.”  Consequently, there will likely be debate in the courts for some time as to whether particular activities fall under this rubric so as to allow or bar an assertion of the assumption of risk defense.