Ruling in Assumption of Risk Case Favors Defendants

Feb 1, 2008

By Jarett Warner of Havkins, Rosenfeld, Ritzert & Varriale
Leagues, teams and premises owners would do well to heed a decision by New York’s Appellate Division, First Department on January 8, 2008 that elaborated upon the circumstances where a plaintiff may be deemed to have assumed the risk of injury, thereby relieving a defendant of its duty of care.
The facts of Roberts v. Boys and Girls Republic, Inc., 2008 NY Slip Op 73, are straightforward. While plaintiff was at a baseball field to watch her son practice with his team, she strayed into the path of a bat as it was swung by a player who was “on deck” and taking a practice swing near the third base line. She sustained personal injuries and the negligence action ensued thereafter.
In upholding the summary judgment decision below, the Appellate Division analyzed the doctrine of primary assumption of risk. Pursuant to the doctrine of primary assumption of risk, a voluntary participant, spectator or even a bystander is deemed to have assumed certain risks occasioned by athletic or recreational activity. To the extent of such an assumption, any legally enforceable duty to reduce the risks of such activity is limited. The Court noted that under primary assumption of risk, a plaintiff assumes risks attributable to “any open and obvious condition of the place where [the sporting activity] is carried on.” As such, the Appellate Division held that an assumption under the doctrine is “potentially broad” and “may encompass risks engendered by less that optimal conditions provided those conditions are open and obvious and that the consequently arising risks are readily appreciable.” (emphasis added). A defendant’s duty, therefore, is to exercise due care to make the conditions as safe as they appear to be. If the risks are fully comprehended or perfectly obvious (even with regard to “less than optimal” conditions), the plaintiff has consented to them and the defendant has discharged its duty.
In Roberts, the Appellate Division held that plaintiff assumed the risk that resulted in her injury. The rationale was that the danger associated with people swinging bats on the sidelines while warming up for a game is inherent to baseball. It was of no moment that she was a bystander. The Appellate Division held that she assumed the risk given her voluntary proximity to the game. However, the Appellate Division further noted that there was evidence that the “on deck” area was marked with equipment and virtually in continuous use during the time plaintiff was there. The makeshift sideline on-deck area, the complained of “hazard”, was open and obvious to plaintiff and “as safe as it appeared to be.” Accordingly, the Appellate Division held that summary judgment was properly granted to defendants.
Jarett Warner is an associate at Havkins, Rosenfeld, Ritzert & Varriale. He can be reached at


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