Sporting Participant’s Assumption of Risk
August 17, 2011 Posted By Jenna E. Elkind Complex Litigation
New York Courts have long had to answer the question of what duties are owed to a participant in a sporting activity. Courts have consistently held that “risks involved with sporting events are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes.” Conning v. Dietrich, 2011 NY Slip Op 513404, citing Turcotte v. Fell (Sup. Ct. Kings Cty. July 15, 2011), 68 N.Y. 2d 432 (1986). Because participants are free not to engage in the activity, defendant’s only duty is “to make the conditions [of the event] as safe as they appear to be.” Id. “If the risks of the activity are fully comprehended or perfectly obvious, plaintiff [is deemed to have] consented [to the risks] and defendant has performed its duty.” Id.
The key in assumption of risk cases is whether plaintiff was aware of the risks involved in participating in the sporting activity. Multiple factors are looked upon to determine awareness, with two of the most important being plaintiff’s level of experience and how open and obvious the risk was prior to the accident.
Courts are more likely to find that plaintiff assumed the risk of injury if plaintiff has experience in engaging in the sporting activity. Courts hold that “by engaging in a sport or recreation activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” Conning v. Stewart.
Plaintiff is also more likely to be found to have assumed the risk of injury from an open and obvious condition. “[W]hether the risk of injury is open and obvious is a determinative factor in assessing plaintiff’s comparative fault.” Conning v. Stewart.
The Appellate Division has recently found that the “primary assumption of the risk doctrine extends to risks engendered by less than optimal conditions, provided that those conditions are open and obvious and that the consequently arising risks are readily appreciable.” Burvowski v. Clarkson University. In Burvowski, a pitcher was hit by a baseball. He alleged that defendant created an especially hazardous condition in failing to use an “L-screen” which protects pitchers from balls hit back directly at them. The Appellate Division held that plaintiff assumed the risk of being hit by a ball in a game of baseball and that it was “irrelevant” that an L-screen was not used.
Remember, if a plaintiff is hurt while engaging in a sporting activity, defendant may move for summary judgment on the theory that plaintiff assumed the risk of injury by voluntarily engaging in the event. Plaintiff must show that he was unaware of the risk involved, that it was not open and obvious or that defendant unreasonably increased the risks involved.