By Jarett L. Warner
One of the primary arguments raised by a defendant in a sporting or recreational negligence action is that the plaintiff assumed the risk of injury through his or her participation in the activity. In turn, one argument repeatedly raised by the plaintiff is that the defendant increased or enhanced the risk of injury.
This model of the arguments recently found itself in front of New York’s highest Court. In Bukowski v. Clarkson Univ. (Court of Appeals June 5, 2012), the Court of Appeals was faced with the issue of whether a college baseball pitcher, who was hit with a line drive during indoor practice, assumed the risk of injury. The plaintiff in Bukowski, who played organized baseball since he was 5 years old, participated in indoor practice at his university. While pitching to live hitters without the benefit of a protective screen, he was struck by a line drive, breaking his jaw as a result. The trial court granted the defendants’ motion for a directed verdict holding that the plaintiff assumed the risk of being hit by a line drive and the appellate division affirmed. The Court of Appeals also affirmed. It was noted by the Court that the plaintiff was an experienced and knowledgeable baseball player, who testified that he was aware that he could get hit by balls, had observed others get hit by balls and as a pitcher had hit batters during practice. He was also aware of the risk of pitching without the protective screen. Although the plaintiff claimed that the color of the pitching backdrop and the lighting conditions increased the risk of injury, the Court of Appeals held that “the conditions in the indoor facility did not create a dangerous condition over and above the usual dangers that are inherent in the sport.”
Many other defendants have not had the same level of success raising assumption of risk as a defense in the context of sporting and recreational cases.
For example, in Benolol v. City of New York, 94 A.D.3d, 941 N.Y.S.2d 489 (1st Dep’t April 3, 2012), the plaintiff was injured while playing soccer when he tripped over an uneven portion of the artificial playing surface. The Appellate Division affirmed the denial of the defendant’s summary judgment motion, holding that the defendant failed to demonstrate that the uneven condition was open and obvious and was not the result of the defendant’s negligence in maintaining the field.
In a similar case involving flag football, the Appellate Division, Second Department came to a similar conclusion. In Bocelli v. County of Nassau, 93 A.D.3d 747, 940 N.Y.S.2d 660 (2d Dep’t March 20, 2012), the plaintiff was allegedly injured while playing flag football in a park when he fell on a sprinkler head while running. The Appellate Division reversed the trial court and held that the defendants’ summary judgment motion should have been denied. The Court held that “the defendants failed to provide any evidence that the risk of injury from a sprinkler head was inherent in the game of flag football or that the sprinkler head was not concealed and did not unreasonably increase the risk associated with playing flag football.”
The assumption of risk doctrine is often also raised in cases involving school-aged children who participate in sports or other recreational activities. For example, recently, the Appellate Division was unwilling to dismiss the plaintiff’s action in Viola v. Carmel Cent. Sch. Dist., 2012 NY Slip Op 04001(2d Dep’t May 23, 2012), involving a junior varsity softball player. The plaintiff was a tenth grader on the girl’s softball team, who was injured while sliding into second base. She claimed that second base had not been installed properly as one of its points faced first base rather than a flush side, causing her left foot to hit the point of the base. The Appellate Division, Second Department held that “[a]lthough generally, a softball player assumes the risk of injury from sliding into a base . . . here, the defendants failed to demonstrate that the base was properly positioned, that [the plaintiff] was aware of the allegedly improper positioning, or that it was an open and obvious condition . . . the defendants failed to establish that the allegedly improperly positioned base did not unreasonably increase the risk of injury . . . .”
Three weeks later in Blumstein v. Half Hollow Hills Central Sch. Dist., 2012 NY Slip 04307 (2d Dep’t June 16, 2012) in an action involving a minor participating in gymnastics, the Appellate Division again held that the assumption of risk doctrine should not bar the plaintiff’s action from proceeding. In Blumstein, the infant-plaintiff was allegedly injured while participating on her school’s gymnastic team. Specifically, she was injured while performing a maneuver and the heel of her foot landed between two mats that had become separated, although they had been connected by Velcro. The Appellate Division, Second Department held that the defendants failed to establish, in their summary judgment motion, that “the allegedly dangerous condition caused by improperly secured mats did not unreasonably increase the risk of injury inherent in gymnastics.”
As is clear from the cases, the critical inquiry as to the likelihood of success on an assumption of risk argument is whether there is a viable argument that the defendant somehow increased the risk of injury over and above the inherent normal activity related to the sport or recreational activity. A creative plaintiff’s attorney will assert such allegations in his or her pleadings. The defendants must attempt to refute these allegations through well-planned and thorough investigation and discovery. For example, schools, sporting and recreational facilities should ensure that incident reports are prepared contemporaneously with a reported accident, and that the report indicates the manner in which the accident occurred, that all employees with first-hand knowledge of the incident are promptly interviewed and have participants sign waivers of liability. During litigation, the defendants’ attorney should systematically inquire at depositions (as well as through other discovery devices) as to the plaintiff’s experience and expectations with regard to the activity.
Jarett L. Warner is Counsel at Havkins Rosenfeld Ritzert & Varriale. He concentrates his practice in defending sports and recreational venues and operators, construction companies and premises owners and managers in personal injury actions. He can be reached at jarett.warner@hrrvlaw.com
