Assumption of Risk Doctrine Loses Steam Where ‘Compulsion’ Is Present

Aug 29, 2008

A New York state appeals court has reversed a trial court decision which granted a school’s motion for summary judgment in a case in which several students had sued the school after they were injured while participating in a relay race.
The defendants had successfully argued at the trial court level that the students assumed the risk of injury by participating in the race. The appeals court, however, found that “the element of voluntariness was overcome by the compulsion of a superior,” piercing the assumption of risk doctrine.
In June of 2005, a student plaintiff was participating in a “backward” relay race organized by his school as part of a field day when he allegedly was injured when he slipped or tripped, and fell. At his deposition, the plaintiff, who was a 10-year-old fifth grader at the time of the accident, explained that while the relay race originally was a “forward” one, two school employees who were supervising the race turned it into a backward one, and “told” the children to start running backward. In addition, in an affidavit, the plaintiff recounted, inter alia, that before the field day, his teachers “told” him that he would be participating in the race, and that he therefore “presumed that he had no choice but to participate.”
On their motion for summary judgment, the defendants demonstrated their entitlement to judgment as a matter of law based upon the doctrine of primary assumption of the risk, which provides that a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport or activity generally and flow from such participation (see Morgan v State of New York, 90 NY2d 471, 483-486, 685 N.E.2d 202, 662 N.Y.S.2d 421; Turcotte v Fell, 68 NY2d 432, 438, 502 N.E.2d 964, 510 N.Y.S.2d 49; Maddox v City of New York, 66 NY2d 270, 279, 487 N.E.2d 553, 496 N.Y.S.2d 726; Joseph v New York Racing Assn., 28 AD3d 105, 108-111, 809 N.Y.S.2d 526).
The plaintiff countered that there was a triable issue of fact as to the application of the “inherent compulsion” doctrine, which “provides that the defense of assumption of the risk is not a shield from liability, even where the injured party acted despite obvious and evident risks, when the element of voluntariness is overcome by the compulsion of a superior” (Benitez v New York City Bd. of Educ., 73 NY2d 650, 658, 541 N.E.2d 29, 543 N.Y.S.2d 29; see Iosue v Loughlin, 262 AD2d 532, 692 N.Y.S.2d 664; Pike v Gouverneur Cent. School Dist., 249 AD2d 820, 820-821, 671 N.Y.S.2d 872; DeGala v Xavier High School, 203 AD2d 187, 610 N.Y.S.2d 270).
Agreeing with the plaintiff, the appeals court held that “the Supreme Court should have denied the respondents’ motion for summary judgment dismissing the complaint.”
Barbara Smith, etc. v J.H. West Elementary School, et al.; S.Ct.N.Y., App. Div., 2d Dept.; 2008 NY Slip Op 5676; 2008 N.Y. App. Div. LEXIS 5576; 6/17/08
Attorneys of record: (for appellant) Robert K. Young, Bellmore, N.Y. (Gary J. Young of counsel). (for respondent) McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel).


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