Personal injury cases in New York are based on a defendant owing some legal duty of care towards the plaintiff. For example, a business that opens its premises to the public owes a certain duty of care to keep the property in reasonably safe condition. And someone who operates a motor vehicle owes a duty to the other people on the road to obey the traffic laws and not recklessly cause an accident.
In some personal injury cases, however, a defendant may raise an affirmative defense known as “assumption of risk.” In simple terms, this is where the defense argues that the plaintiff assumed the risk of injury. As such, the defendant did not owe any duty of care to the plaintiff and cannot be held legally responsible for the plaintiff’s injuries.
There are two common scenarios where assumption of risk is raised. The first is in a premises liability case. Say someone is trespassing on private property where the signage clearly states “enter at your own risk.” If that person is subsequently injured while trespassing, the property owner can argue they assumed the risk.
The second scenario is where someone is injured while participating in an inherently risky or dangerous activity. To give a simple example, if you choose to play football and another player tackles you, any injury you sustain would likely be covered by the assumption of risk doctrine. After all, you chose to play a sport where people are commonly injured in that exact manner. And there is, practically speaking, no way for the organizer of the football game to eliminate that risk.
Can a Child Assume the Risk of Injury While Watching a Lacrosse Match?
An assumption of risk defense, however, is highly fact-specific. For instance, what if a spectator is injured while watching a sporting event? Did they “assume the risk” of injury by choosing to attend the game?
Consider this recent case from Nassau County on Long Island. In Spillane v. Hofstra University, an eight-year-old plaintiff attended a college lacrosse game. The plaintiff was hit by a stray lacrosse ball that “flew off the playing field during the warmup period before the game,” according to court records. The child’s parents subsequently filed a personal injury lawsuit against the university under New York premises liability law. The university then raised an assumption of risk defense.
Although a Supreme Court judge initially agreed to dismiss the lawsuit on assumption of risk grounds, he later reconsidered and reversed that ruling. The university then appealed to the Second Department. But the appellate court agreed that it was improper to dismiss the child’s personal injury lawsuit at this time.
The main issue was that the university had not established “whether the plaintiff’s particular background and experience was such that he appreciated the consequences of standing where he did during the warmup period for the college lacrosse game.” Assumption of risk requires proof that the plaintiff actually understood and appreciated the risks inherent in the activity. This rule extends not just to the participants in an activity but also any spectators.
Primary, Express, and Implied Assumptions of Risk
Broadly speaking, there are three kinds of assumptions of risk: primary, express, and implied. A primary assumption of risk means the plaintiff chose to participate in the activity that led to their injury despite knowing and comprehending the inherent risk. Again, this commonly covers situations involving athletes who are injured while playing their sport. But it can also app
ly to any inherently risky recreational activity, such as skydiving or horseback riding.
Express agreements can also constitute an assumption of risk that shields a potential defendant from liability. A common example would be when someone participates in an activity where they are asked to sign a liability waiver first. It is important to note, however, that such waivers are not always legally enforceable. For example, New York law declares express agreements “exempting pools, gymnasiums, places of public amusement or recreation and similar establishments” that charge a fee for entry, a violation of public policy.
Implied assumption of risk means that even when there was no express agreement to assume risk, and the primary assumption of risk does not apply, as the assumption of risk can still be implied by the plaintiff’s conduct. This can be applied to situations, like the case above, where a spectator is injured at a sporting event.
In general, the implied assumption of risk tends to fall under New York’s general rules governing comparative fault in personal injury cases. Comparative fault–also known as contributory negligence–means that in any personal injury case, the judge or jury must establish the relative fault of all parties involved in terms of percentages. This includes the plaintiff’s own negligence that may have contributed to their injuries. Any award of damages must then be reduced in proportion to the plaintiff’s comparative fault.
The good news is that New York is a “pure” comparative fault state. Many states bar a plaintiff from recovering any compensation if their fault exceeds a certain threshold, say 50 percent. New York has no limits. In theory, a plaintiff could be 99 percent at-fault and still collect 1 percent of their total damages from a negligent defendant. So even in a case where an implied assumption of risk may be at issue, that will not necessarily serve to defeat a plaintiff’s personal injury claim in its entirety.
Speak With a New York Personal Injury Lawyer Today
Like any affirmative defense, the assumption of risk is one where it is up to the defendant, not the plaintiff, to prove certain things. The defense must show that the plaintiff had the ability to comprehend the risk and that they still chose to voluntarily assume it through express or implied action. And as previously discussed, even where there may have been some assumption of risk, that does not mean the defense automatically walks away from a personal injury case scot-free. If you have been injured on someone else’s property or while participating in an organized activity, it is important to seek out qualified legal advice as soon as possible. To speak with a New York personal injury lawyer today, contact Powers & Santola, LLP, to schedule an initial consultation.