By Jill L. Yonkers
The doctrine of assumption of risk is a familiar one in the sports-torts arena. The general rule is that an athlete assumes the normal, commonly appreciated risks associated with playing his or her particular sport. It cannot be used to protect against reckless or intentional conduct or concealed or unreasonably increased risks, however. For example, a pitcher lobbing fastballs from behind a pitching screen nonetheless accepts the risk that his teammate batting could hit a ball right back at him. A wrestler assumes the risk that he could acquire a skin disease from close contact with another wrestler. A softball player in a municipal league assumes the risk of injury from slipping on a concrete pathway adjacent to the outfield when running to catch a ball. While the assumption of risk doctrine is a frequent subject of litigation relating to injured athletes and their attempts to hold the venue owner—which is often a school district—responsible, there is a paucity of cases related to athletes seeking to hold officials governing their match, game, or meet responsible for their injuries.
But you may not be surprised that the assumption of risk doctrine can protect referees as well. Last year, a wrestler who was injured during a high school match tried to recover against a referee and the association that provided his services. The wrestler claimed that the referee failed to stop his match when he and his opponent entered into a potentially dangerous position. The referee had stopped the match before when the wrestlers entered into a potentially injurious position but not this particular time. Although the lower court refused to dismiss the action as against the referee and his association, the appellate court granted their summary judgment motion, dismissing the claims against them. Rispoli v. Long Beach Union Free Sch. Distr., 111 A.D.3d 690, 975 N.Y.S.2d 107 (2d Dep’t 2013).
The reviewing court found that the wrestler assumed the risk of commonly appreciated dangers inherent in wrestling. Assisting the referee was the fact that the position that led to the wrestler’s injury was only considered potentially hazardous to his opponent, not him. Thus, the referee’s refusal to stop the match that time did not increase the plaintiff’s risk of injury. Since the referee did not otherwise create the risk or act in a reckless manner, he could not be held responsible.
The assumption of risk doctrine remains an important part of your defensive arsenal. Not only does it extend to those risks associated with the obvious conditions of the playing area, it applies to the common and inherent risks found in the particular sport and the usual risks that flow from playing it. This doctrine can protect owners like school districts, their employees/coaches, and even officials monitoring play.
Yonkers is a partner at Hodgson Russ LLP (www.hodgsonruss.com).
