Analysing New York’s Doctrine of Primary Assumption of Risk
By William J. Decaire, Esq.
Attorneys on both sides of personal injury case stemming from sports or recreational activities are always looking to utilize the law in a way which best suits their respective clients’ interests. In New York, that means confronting the long standing doctrine of primary assumption of risk.
The analysis of a sports-related personal injury case in New York usually begins with the seminal case of Turcotte v. Fell which was decided by the New York Court of Appeals in 1986. Ronald Turcotte was a highly decorated jockey who, at the time of his accident, had ridden in over 22,000 races. Those who are familiar with the “sport of kings” will remember him for the historic races in 1973 when he piloted the legendary Secretariat to the Triple Crown. On July 13, 1978, at the beginning of the 8th race at Belmont Park, the horse Turcotte was riding clipped the heels of another causing it to stumble and fall. Turcotte was thrown to the ground and sustained severe injuries which left him a paraplegic. Turcotte and his wife commenced a personal injury action against Jeffrey Fell (the jockey of the other horse involved), David Reynolds (the owner of the other horse) and the New York Racing Association (NYRA)(owner of Belmont Park). The Turcottes claimed in their complaint that Fell was responsible for the incident under a common-law negligence theory as well as for violating certain racing rules against “foul riding.” The claim against Reynolds was under a respondeat superior theory for the conduct of his employee Fell. The claim against NYRA was that it was negligent in failing to water and groom that portion of the track where the incident occurred and that such a failure caused the area to be unsafe. Separate motions were made by the respective defendants to have the Turcotte suit dismissed. Ultimately, the case was reviewed by New York’s highest court to determine if it may proceed to trial. After reviewing the parties’ submissions and hearing oral argument from counsel, the Court of Appeals rendered its decision which dismissed Turcottes’ case entirely.
In its decision, the Court of Appeals set forth the standard for determining if such sports-related personal injuries may proceed. The Court held that the complaint should be dismissed as to all defendants because, by participating in the race, the plaintiff consented that the duty of care owed to him by the defendants was no more than a duty to avoid reckless or intentionally harmful conduct. The Court found that the plaintiff, as a professional athlete, voluntarily participated in the sport and that the event which caused his injury was a known, apparent or reasonably foreseeable consequence of that participation. As a result, the Court applied the doctrine of “primary assumption of risk”, which holds to the premise that a defendant’s duty under such circumstances is to exercise care to make the conditions as safe as they appear. Having found that the defendants in the Turcotte case did just that, the Court ruled in their favor.
Since 1986, the Turcotte case has served as a guide for defining a defendants’ “duty” in sports or activity-related personal injury cases in New York. Defendants have attempted to apply the primary assumption of risk doctrine to activities beyond organized sports and plaintiffs have looked for avenues to circumvent the bar against recover for injury associated with known, apparent or reasonably foreseeable consequences of participation in sports. With this push and pull between opposing sides, New York Courts have had to address and further define the primary assumption of risk doctrine in several circumstances.
A. WHAT IS VOLUNTARY PARTICIPATION?
In Benitez v. New York City Board of Education, the Court of Appeal examined this issue. Benitez was a varsity football player for George Washington High School in 1983. He was injured while executing a block during a game against John F. Kennedy High School. There was testimony at the trial that, although he was fatigued at the time of his injury, Benitez continued to play because of the “indirect compulsion” associated with the teacher-student relationship and Benitez’s own concern that, if he removed himself from the game, he would be jeopardizing his college scholarship opportunities.
After clarifying that a school district is required to exercise the less demanding “ordinary reasonable care standard” in the context of wholly voluntary participation in intramural, interscholastic and extracurricular athletic endeavors, the Court addressed the “inherent compulsion” argument put forward by the plaintiff and adopted by the lower courts in this case. The Court of Appeals, in reversing the lower courts and dismissing this case, pointed out that there is a distinction between compulsory participation in physical education courses and purely voluntary activities such as Benitez’s participation in the football game here. The theory of “inherent compulsion” provides that the defense of assumption of risk is not a shield from liability, even if the injured party acted in the face of obvious risks, if the element of “voluntariness” is overcome by the compulsion to participate from a superior. In this case, the Court found that there was no evidence that Benitez was concerned about an unreasonably heightened risk of competition or that his coach directed him to disregard a risk he would not have otherwise assumed. While Benitez was unsuccessful, this case demonstrates those who are compelled to participate in sports-related activities are not barred from recovery for injuries sustained in the performance of the activity – even if the risk was obvious to them.
B. WHAT IS AN “INHERENT RISK?”
There is a long line of case law in New York which follows the holding in Turcotte and dismisses sports-related personal injury cases based on findings that the conditions which were allegedly defective were “inherent” risks associated with the particular activity. However, there is a growing line case law where courts have rejected the use of primary assumption of risk doctrine because the complained of risk was not “inherent” in the activity at issue. Most of these cases may be traced back to the Court of Appeals decision in Morgan v. State of New York. There, the Court reviewed four cases which involved the primary assumption of risk doctrine. In the first three, the Court applied its reasoning from the Torcotte case and dismissed the sports-related personal injury cases. However, the Court kept alive the fourth case which was brought on behalf of a 60-year-old tennis enthusiast.
The case involved Sheldon Siegel who was injured when he was caused to trip and injure himself due to a torn net which divided the indoor tennis court he was playing on from its neighboring court. Mr. Siegel successfully argued that, while the net separating the two courts was inherently a part of the game, a torn or allegedly dangerous net is by its nature not automatically an inherent risk of a sport as a matter of law. Based upon this theory, the Court of Appeals agreed with Mr. Siegel and denied the defendants’ motion to dismiss his complaint. The issue came down to whether the defendant owner/operator of a sports-related facility has a continuing duty to players to keep the playing surface and associated equipment in good repair.
C. WHO MAY ASSUME A RISK?
Since the decision in the Morgan case, courts have been inundated with sports-related personal injury cases where plaintiffs have argued that the particular defect in question is not inherent to the activity itself. Time and time again, New York appellate courts have distinguished these cases from the Morgan case in order to protect and clarify the primary assumption of risk doctrine.
At the same time, defendants have been successful in extending the application of the primary assumption of risk doctrine beyond cases involving professional athletes and experienced recreational enthusiasts. In Roberts v. Boys and Girls Republic., Inc., the plaintiff was at a baseball field watching her son play when she walked into the path of a player who was swinging a bat outside of the fenced in area of the field in what was described as a “make-shift on deck circle.” There, the plaintiff argued that the doctrine of primary assumption of risk should not apply to her since she was not a participant and the alleged incident happened off of the playing field. The Appellate Division disagreed and dismissed her complaint. In doing so, the Court noted that the primary assumption of risk doctrine applies to voluntary participants, spectators and even bystanders. The risk was deemed to be assumed by the plaintiff based upon her voluntary proximity to the game and the obvious risk of being struck by a swung bat.
This area of law is one which may be expected to be continually challenged as sporting activities become both more dangerous and more popular. Defendants’ attorneys will look to expand the doctrine of primary assumption of risk to as many activities as possible, while plaintiffs’ attorneys look for alternate route around it to obtain a recovery for their clients’ injuries. With so much on the line, it is a theory which is sure to continue to be as competitive as the underlying contests it considers.
Decaire is a partner Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., where he practices primarily in the field of civil litigation defense, including personal injury, professional malpractice, civil rights, municipal and products liability actions. He also serves as a deputy attorney for a number of municipalities.