By Jonathan Hansen, Esq., of Carter Conboy
The assumption of risk doctrine is one of the most well-known tenets of personal injury jurisprudence. Pursuant to this doctrine, a voluntary participant in a sport or recreational activity consents to the “commonly appreciated risks” associated with said sport or activity.[1] Whether it’s the company softball game after work, the weekend round of golf, or the early morning trip to the gym, the assumption of risk doctrine has traditionally insulated business owners, schools and municipalities from liability for personal injuries occurring while an individual is participating in a sport or recreational activity.
There are exceptions to every rule, however, and in New York there is one exception to the assumption of risk doctrine that continues to expand. The “heightened risk” exception provides that if the circumstances surrounding a sports-related injury are such that the risk of injury is heightened beyond that which is inherent in the activity, the assumption of risk doctrine will not protect the defendant from liability.[2] The question is, where is that line drawn? When does a “commonly appreciated risk” transform into a “heightened risk” such that liability may be imposed? This article examines some examples of case law within the last year in which a New York court found the risk of injury had been heightened. These particular cases are being addressed to demonstrate that the courts have a lot of leeway in defining these legal terms, which leads to a very blurry line between what constitutes a commonly appreciated risk as opposed to a heightened one.
In the first case, a junior varsity softball player sued her school after she was struck in the face by a batted ball while pitching batting practice to her teammates. At first blush, this would seem like the classic example of an assumption of risk case. After all, everyone knows that a pitcher (or any person on or near the diamond, for that matter) might get hit with a batted ball. However, a New York court recently found the assumption of risk defense inapplicable to this case. We’ve probably all gotten to the ballpark early and seen the protective screen that is typically placed in front of the pitcher’s mound during batting practice. The school was using this type of protective screen in this case. The problem arose when the screen fell down in the middle of batting practice, but the coach directed the student to keep pitching. The court found that, because the protective screen may have been defective, and because the coach directed the student to continue pitching at the same distance from home plate, the inherent risk of injury was unreasonably heightened. Thus, the assumption of risk doctrine could not serve as an absolute defense to liability for the school.[3]
In another recent lawsuit against a school for a student’s softball injury, a plaintiff was injured while sliding into second base. Once again, this would seem to be an inherent or “commonly appreciated” risk of the game. In this case, though, the court found that the base may have been improperly installed, contributing to the student’s injury. When positioned correctly, the base would have a little bit of “give” when a sliding player pushed against it. However, because the base was positioned improperly, the base did not move when the player slid into it, causing a foot injury. The New York court noted that the assumption of risk doctrine applies to risks associated with “the construction of the playing surface”, such as divots in the outfield grass or uneven terrain in the infield. But here, the court found that the improper positioning of the base was not an open and obvious condition and unreasonably heightened the risk of injury for the players.[4]
A New York court has also recently cast doubt on the applicability of the assumption of risk doctrine in a situation where the plaintiff was injured after working out with a personal trainer at her gym. Prior to the training session, the plaintiff advised the trainer that she had a history of back problems. The trainer led the plaintiff through an exercise program at the gym. A few days later, the plaintiff performed the same program again on her own. During this second session, which she did at home based on the routine shown to her by the trainer, the plaintiff began to experience lower back pain. She eventually required surgery, and thereafter commenced suit against the gym and the trainer. The court would not dismiss the case based on the gym’s contention that the plaintiff assumed the risk of injury, finding that the exercises recommended by the trainer may have been inappropriate for an individual with a history of back problems. Thus, the plaintiff was entitled to a trial to determine whether this heightened the risk of injury beyond that which was “commonly appreciated”.[5]
Even in a sport known to be extremely dangerous, such as motorcross, the applicability of the assumption of risk defense is not a foregone conclusion. In this case, the plaintiff, an experienced motorcross driver, sued for injuries he sustained during a race after he fell from his bike and was hit by other drivers. The New York court refused to dismiss the case based on assumption of risk and found that the plaintiff was entitled to a trial to determine if the Motorcross Association, who was holding the race, was negligent in causing or contributing to the plaintiff’s injuries. The court pointed to evidence that the “flag person” was not trained properly or did not act appropriately to warn oncoming racers that the plaintiff has fallen from his vehicle, thus unreasonably heightening the plaintiff’s risk of injury.[6]
What about at the golf course? Most of us expect that one assumes the risk of being hit with an errant golf ball on the course, but a New York court recently found issues of fact for a jury to decide as to whether the assumption of risk defense applied in such an instance. Under the unique facts of this case, an experienced golfer was hit by his own ball when his tee shot on the 10th hole ricocheted off a masonry-block retaining wall at a Municipal golf course. What a way to begin the back nine. The plaintiff sued the City. The court found that there was evidence to suggest that the retaining wall was higher than the grade level of the tee box, and that tall grass obscured the view of the wall’s protruding front edge. Therefore, the court held, it was for a jury to decide whether the risk of injury under the circumstances was unreasonably heightened beyond that which was inherent in the sport.[7]
One could certainly argue that all of the cases discussed above involve injuries arising from the “commonly appreciated risks” of the chosen sport or activity, and that the assumption of risk doctrine should apply in all of them. However, these recent cases, all decided by New York courts in the last year, demonstrate that the term “commonly appreciated risk” is being defined more and more narrowly. In doing so, New York courts are signaling to business owners, schools and municipalities in the state that the assumption of risk doctrine may no longer be a reliable shield to protect them from liability for sports-related injuries.
[1] Weinberger v. Solomon Schechter School of Westchester, 102 A.D.3d 675 (2d Dep’t 2013).
[2] Id.
[3] Id.
[4] Viola v. Carmel Cent. Sch. Dist., 95 A.D.3d 1206 (2d Dep’t 2012).
[5] Layden v. Plante, 101 A.D.3d 1540 (3d Dep’t 2012).
[6] Ozog v. Wester New York Motorcross Assoc., 953 N.Y.S.2d 520 (4th Dep’t 2012).
[7] Shapiro v. City of Amsterdam, 96 A.D.3d 1211 (3d Dep’t 2012).
