Primary Assumption of Risk Reexamined: 'Grady v. Chenango Valley Central School District'

Fault in personal injury actions in New York is generally apportioned by assessing the comparative culpability of plaintiffs and defendants pursuant to CPLR Section 1411. This provision eliminated contributory negligence and assumption of the risk as absolute bars to recovery in most negligence cases. However, although fault in personal injury actions is generally governed by principles of comparative negligence, the doctrine of primary assumption of the risk was carved out as a remnant of prior law in determining liability for injuries sustained during certain sporting activities. The Court of Appeals has held that primary assumption of the risk is a measure of a duty of care and not an absolute defense. However, it may sometimes completely bar recovery by relieving the defendant of any duty of care, not only to professional athletes but to a voluntary participant or spectator in a sporting or recreational activity. The stated purpose is ostensibly to facilitate free and vigorous participation in athletic activities based upon a presumption that certain of these activities have been found to have such heightened risk that there may be no duty of care. Carving out those activities subject to primary assumption of the risk rather than comparative negligence under CPLR 1411 has been a fact laden and often arbitrary process.

That the courts are still struggling to reconcile the scope of primary assumption of the risk with  principles of comparative negligence is readily apparent in the recent Court of Appeals decision in Grady v. Chenango Valley Central School District, 2023 NY Slip Op 02142 (2023), where a consolidated appeal examining primary assumption of the risk in two actions resulted in different results and  a dissent in each. 

Under the doctrine of primary assumption of the risk, participants are deemed to have consented to those commonly appreciated risks which are inherent in and arise out of the nature of the sporting activity, whether it is the manner in which the activity, or an exercise or drill related to it, was conducted, or the physical condition of the field or arena of play. In discussing the doctrine in Morgan v. State, 90 N.Y.2d 471 (1997), the Court of Appeals stated that a person who chooses to participate in an athletic activity “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” These risks may involve “less than optimal conditions,” so long as those conditions are, in fact, inherent to and unavoidable from the nature of the sport. This may include risks related to the construction of the playing field. The key word remains “inherent.” A participant in an athletic activity should not assume “additional or heightened risks beyond those inherent in a sport,” including defects in the playing surface that come about through improper maintenance. 

The cases have historically been inconsistent. For example, in Siegel v. City of New York, 90 N.Y.2d 471 (1997), decided with Morgan, plaintiff snagged his foot on a torn tennis net dividing the courts. The plaintiff had known for over two years that the net was ripped, but nonetheless  elected to use the court. However, the court held that the assumption of the risk doctrine was inapplicable because a ripped net was not an inherent risk of playing tennis. In Wyzykowski v. State, 162 A.D.3d 1705 (4th Dept. 2018), the court held that a negligently maintained ice surface was not an inherent risk of ice skating. Thus, even though the claimant was aware of the poor ice conditions, her decision to continue to skate related only to the issue of her comparative fault, if any. So, too, in Furnari v. City of New York, 89A.D.3d 605(1st Dept. 2011), the plaintiff fell  while playing softball on an uneven playing surface patched with fresh tar. The court found that the accident was caused by an unevenness in the playing surface, which was not inherent in a sport played on an asphalt surface that is presumably flat. As such, there were issues of fact for  a jury. In Simmons v. Saugerties Central School District, 82 A.D.3d 1407(3d Dept. 2011), the court held that neither the open and obvious nature of the large hole into which the plaintiff stepped while playing touch football nor his allegedly long-standing knowledge of it barred inquiry into whether the dangerous condition resulted from the defendant’s negligent maintenance of its property over and above the dangers inherent in the sport.

However, there have been a number of cases to the contrary. For example, in Williams v. New York City Housing Authority, 107 A.D.3d 530 (1st  Dept. 2013), the plaintiff, an experienced basketball player, tripped and fell over a large and highly visible crack in the outdoor court. He had previously played there and was aware that the court had cracks. The court held that  the  assumption of risk doctrine was applicable because the plaintiff was aware of the obvious risk of playing on the cracked court. In Felton v. City of New York,106 A.D.3d 488 (1st Dept. 2013), the court similarly held that the doctrine of assumption of risk warranted dismissal of the complaint where the court was cracked, repaired and uneven. 

In Palladino v. Lindenhurst Union Free School District, 84 A.D.3d 1194 (2d Dept. 2011), the infant plaintiff was playing handball when he stepped on an improperly placed grate of which he was previously aware. Despite  the fact that the grate was not inherent in the game, the court held that the defendant demonstrated its prima facie entitlement to judgment as a matter of law. In Philius v. City of New York, 161A.D.3d 787(2d Dept.  2018), the court  dismissed the plaintiff’s action under primary assumption of the risk where he admitted that he was aware of the cracks in the basketball court prior to his accident. In each of these decisions, justices on the panels opined that these results were not consistent with Siegel but they were compelled to concur under Second Department precedent.

The courts have also examined  the types of sporting and recreational activities to which primary assumption of the risk should be applicable. In Trupia v. Lake George Central School District, 14 N.Y.3d 392 (2010), the Court of Appeals stated:

We have recognized that athletic and recreative activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation

Consistent with this determination, the court in Trupia held that primary assumption of the risk was not applicable to an unsupervised child sliding down a bannister at a school summer program, describing this activity as “horseplay” rather than “some risk-laden but socially valuable voluntary activity.”  

In Custodi v. Town of Amherst, 20 N.Y.3d 83, 89 (2012), the court approved of  the continued application of primary assumption of the risk but held that, as a general rule, “application of assumption of the risk should be limited to cases appropriate for absolution of duty, such as personal injury claims arising from sporting events, sponsored athletic and recreative activities, or athletic and recreational pursuits that take place at designated venues.” It held, however, that the doctrine  was not applicable to the case before it as plaintiff fell while rollerblading in a neighbor’s driveway, not in a sports forum or athletic competition.

The determination of whether a drill or other activity related to participation in a sporting event is itself within the scope of primary assumption of the risk  has led to inconsistent results. For example, in Annitto v Smithtown Central School District, 210 A.D.3d 615(2d Dept. 2022), a varsity high school football player lost control of a weight bar while performing a squat lift in the high school weight room during an off-season weight-training test overseen by the high school’s football coach. The plaintiff contended that the defendant school district was negligent in supervising him at the time of the accident. In response, the school district asserted primary assumption of the risk, claiming that a person who voluntarily participates in a sport or recreational activity is deemed to consent to the risks inherent in that sport, thereby negating any duty on a defendant’s part to safeguard the plaintiff from those risks. The court rejected this argument, holding that primary assumption of the risk was not applicable. The plaintiff was a participant in the sport of football not weightlifting. The only risks assumed by the plaintiff were those that were inherent in the sport of football. 

However, in Bukowski v. Clarkson University, 19 N.Y.3d 353(2012), the plaintiff, a college baseball player, was injured by a line drive while pitching during an indoor practice session. Since the plaintiff was pitching from a mound that was regulation distance from home plate, and the risk that a pitcher will be struck by a batted ball is inherent in the sport of baseball, the Court of Appeals held that the plaintiff’s action was barred by the doctrine of primary assumption of risk. But there was a contrary result in Braile v. Patchogue Medford School District of Town of Brookhaven, 123 A.D.3d 960 (2d Dept. 2014) where the plaintiff was injured during soccer practice held indoors in a school hallway because it was raining. The court held that the action was not barred by primary assumption of the risk as playing in an indoor hallway had risks not inherent in the sport.

Issues involving  primary assumption of the risk have now once again come  before the Court of Appeals in Grady v. Chenango Valley Central School District, 2023 NY Slip Op 02142 (2023). The two cases consolidated for appeal resulted in different results and each spawned a dissent. In the end, these consolidated  decisions provided no new clarity about the scope of primary assumption of the risk. Instead, as the dissent of Judge Jenny Rivera makes clear, the inherent conflict between primary assumption of the risk and the principles of comparative negligence enacted in CPLR 1411 is enormous.

In Secky v. New Paltz Central School District, the court held that the primary assumption of risk doctrine applied, and affirmed the Appellate Division order granting the defendants’ motion for summary judgment. The plaintiff, who had played basketball at the highest amateur student level, was injured during a drill in which the players competed to retrieve a rebound. The plaintiff’s coach had explained that the boundary lines of the court would not apply during the drill and that only major fouls would be called. At the time of the drill, bleachers stationed near the court were retracted. The plaintiff was injured when, pursuing a loose ball from the top of the key toward the bleachers, another player collided with him, causing the plaintiff to fall into the bleachers and sustain an injury to his right shoulder. The plaintiff sued the coach and the school district. The defendants moved for summary judgment. The Court of Appeals found that the elimination of the boundary lines during the drill “did not unreasonably increase the inherent risks of the drill or playing basketball.” It further held that the plaintiff’s injury was  inherent in the sport of basketball and so he assumed the risk of the injury he sustained. There were no issues of fact. “The drill assigned to plaintiff and his teammates did not unreasonably increase the risk of injury beyond that inherent in the sport of basketball, and the Appellate Division properly granted defendants’ motion for summary judgment.”

The outcome was different in Grady where the court held that there were material issues of fact remaining to be resolved by a jury. Th eplaintiff, a senior on the high school varsity baseball team, was injured while participating in a fast-moving drill. Two coaches were hitting balls to separate players stationed in the infield at the same time. Because the drill required baseballs from two parts of the infield to be thrown to two players in the same area near first base, the coaches had positioned a protective screen between them. The plaintiff was injured when an errant ball bypassed the screen and hit him. Although the majority decision of the Appellate Division affirmed the trial court’s dismissal of the action, there were two dissents that allowed the case to be brought before the Court of Appeals. One of the dissenting Appellate Division justices opined that there was a question of fact regarding the adequacy of the protective screen, while another justice dissented because “a jury should be permitted to make the determination as to whether the drill was sufficiently related to the sport of baseball and whether it posed an unreasonable risk of harm.” (190 A.D.3d1218, 1228). The Court of Appeals agreed with the dissenting justices and reversed the Appellate Division dismissal. The court held:

Defendants have not shown that, as a matter of law, plaintiff’s injury was sustained as a result of the inherent risk of baseball, or even due to “suboptimal playing conditions”… Instead, plaintiff has raised triable questions of fact regarding whether the drill, as conducted here and with the use of the seven-by-seven-foot screen, “was unique and created a dangerous condition over and above the usual dangers that are inherent” in baseball … and whether plaintiff’s awareness of the risks inherent in both the game of baseball and the practices that are a necessary part of participation in organized sports encompassed the risks arising from involvement in the drill performed here. Under these unique circumstances, because of the way this drill, with multiple balls in play directed to the same part of the field and with only a relatively small protective screen positioned in front of the first baseman, was conducted, we cannot say that, as a matter of law, the conditions of play were “as safe as they appear[ed] to be” (Turcotte, 68 NY2d at 439) … Errant balls may be an inherent risk of playing baseball, but a jury should be permitted to determine whether plaintiff’s injury was the result of such an inherent risk, or whether “the risks were concealed or unreasonably enhanced” by the complexity of the drill performed with use of a small protective screen …

Neither Secky nor Grady sheds new light on an already troublesome exception to comparative negligence. In a scathing dissent in Secky, Rivera examined the case law and called for an end to this exception to the comparative negligence standard imposed under CPLR 1411. She noted the safeguards to defendants under a comparative negligence standard: “Moreover, under CPLR 1411′s pure comparative fault regime, the trier of fact remains free to consider the risks inherent in the sport when assigning damages based on each party’s culpable conduct (see CPLR 1411). Thus, liable defendants are not automatically subject to 100% of the damages suffered.”

At the conclusion of her careful analysis, she called for an end of primary assumption of the risk as a total bar to recovery:

New York courts need not continue applying this “limited vestige of the assumption of risk doctrine,” (Custodi, 20 NY3d at 87). Even if the doctrine was somewhat defensible as applied to professional athletes who earn a living assuming risks inherent in a for-profit sporting event, the court has unwisely expanded the reach of the doctrine to student athletes and recreational sports participants. In so doing, the court strayed from the foundation of the “primary assumption of risk” rhetoric and tolerated what is, in practice, a complete defense to tortious harm. The way out of this unworkable, results-driven morass is to completely abolish the doctrine and restore the pure comparative fault regime the Legislature intended to establish in 1975.

In a contrary position to that expressed by Rivera, in a dissent in Grady, Judge Madeline Singas opined that there was no issue of fact and that primary assumption of the risk called for dismissal. She opined: “Plaintiff’s injury resulted from “a luckless accident arising from his vigorous voluntary participation in competitive interscholastic athletics.”

It seems clear that there is no appetite at the Court of Appeals at this time for a significant revision or elimination of this exception to the principles of comparative negligence that are applicable to most other personal injury actions and that it will continue to be applied on an individual case by case basis. Notwithstanding, practitioners in this field should continue to analyze each case on its facts as the doctrine of primary assumption of the risk remains in many cases somewhat unpredictably fact driven.